Calimoso v Minister for Immigration and Border Protection

THE ACT 6 The Delegate was required to notify the appellant of the refusal decision in one of the ways specified in s 494B of the Act: see s 66(1) of the Act and r 2.16(3) of the Migration Regulations 1994 (Cth) (Regulations). The Delegate complied with that obligation by transmitting, by email, a document containing notification of the refusal decision: see subs 494B(5)(b). Section 347(1)(b)(iii) of the Act provides that an application to the Tribunal for review of the Delegate's decision must be given to the Tribunal within the prescribed period, being a period "ending not later than": (iii) if the Part 5-reviewable decision is covered by subsection 338(9) - the number of days prescribed, in respect of the kind of decision in question prescribed for the purpose of that subsection, after the notification of the decision. 7 It is common ground that the Delegate's decision is a "Part 5-reviewable decision" that is covered by s 338(9) of the Act. 8 The prescribed period is that prescribed in r 4.10 of the Regulations. It relevantly provides: 4.10 Time for lodgment of applications with Tribunal (Act, s 347) (1) For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5-reviewable decision must be given to the Tribunal: … (d) if the Part 5-reviewable decision is prescribed under subsection 338(9) of the Act - starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received. … 9 The date on which the Delegate's decision was "received" by the appellant is to be ascertained by applying s 494C(5) of the Act. Section 494C relevantly provides: 494C When a person is taken to have received a document from the Minister (1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A). … Transmission by fax, email or other electronic means (5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted. 10 The words "is taken" in subs (5) have the same meaning as the words "is deemed": see s 5(23) of the Act. 11 The appellant contends that, on its proper construction, s 494C(5) of the Act has the effect that he is deemed to have received notification of the Delegate's decision on 24 October 2015, that is, at the beginning of the day following the day on which the Delegate's email was in fact transmitted. If the appellant is correct in that contention, then the time in which he may have lodged a valid application for review would have expired at the end of Monday 16 November 2015. That result would be reached by the application of r 4.10 of the Regulations in conjunction with s 36 of the Acts Interpretation Act 1901 (Cth), which relevantly provides that: (1) the deemed day upon which the appellant received notification of the decision is not to be counted (s 36(1), item 6); and (2) an act otherwise required to be done on a Saturday may be done on the following Monday (s 36(2)). 12 If, however, s 494C(5) of the Act has the effect that the appellant is deemed to have received notification of the Delegate's decision on 23 October 2015, then the time in which he may have lodged a valid application for review would have expired at the end of Friday 13 November 2015.

THE APPELLANT'S SUBMISSIONS 13 The submissions advanced by Counsel for the appellant may be summarised in five propositions: (1) section 494C(5) of the Act is open to the construction advanced by him; (2) the words "at the end of" must be given meaningful operation; (3) if the construction adopted by the Tribunal were correct, the words "at the end of" would be superfluous, void or insignificant; (4) if the construction adopted by the Tribunal were correct, the provision would result in an absurdity; and (5) the construction advanced by the appellant is consistent with a presumption against construing a statute in such a way that would impinge upon fundamental common law rights or significant statutory rights.

CONSIDERATION 14 The primary contention is that the words "at the end of the day" are intended to have the effect of deeming the date of receipt of an email to be a day other than the day that the email was in fact transmitted. The words "at the end of the day", it is submitted, would otherwise bear no different meaning than the words "on the day" or "at the beginning of the day". If Parliament had intended the deemed date of receipt to have been the same day of actual transmission of the email, then the words "on the day" would have been used. As those words were not used, some other meaningful operation must be given to the words in fact used. The only meaningful operation for those words, the appellant submits, is to move forward in time the deemed date of receipt to the first moment of the day following the actual date of transmission. 15 Insofar as s 494C(5) of the Act is concerned with identifying a precise point in time in which a person is deemed to have received a document by email, the text of the provision, considered in isolation, involves a theoretical conundrum: at what precise point in time does one day end and the next begin? The presence of that conundrum might support a contention that s 494C(5) is open to alternative meanings. 16 But the provision is not to be construed in isolation. As the High Court said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and [71] (McHugh, Gummow, Kirby and Hayne JJ): 69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed. … 71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'. (footnotes omitted) 17 In construing s 494C(5) of the Act, it must be borne in mind that the Minister may transmit documents by email for all manner of purposes expressly or impliedly contemplated by the Act. Section 494C(5) applies in a variety of contexts under the Act, in addition to the current statutory context affecting the time in which an application for review is to be made to the Tribunal (although it does not affect the time at which a decision to grant or to refuse to grant a visa, or to cancel a visa, becomes legally effective: see s 67 and s 138 of the Act). 18 It is to be borne in mind that s 494C(5) applies even if transmission by email is not a means of communication that is expressly mandated under the Act or the Regulations: see s 494C(1) and s 494A. 19 As was commonly acknowledged between the parties, s 494C(5) creates a fiction by deeming something to have been done at a time when it was not in fact done. So much was determined by the Full Court in Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 (Tay). The Court said at [20] (Dowsett, Stone and Bennett JJ): The effect of s 5(23) of the Migration Act (see [4] above) is that the proper construction of s 494C(4) and (5) must focus on the meaning of the word 'deemed' and the purpose for which it is used. In Muller v Dalgety & Company Ltd (1909) 9 CLR 693 at 696 Griffith CJ observed that the word 'deemed' may be used to indicate that a definition is exhaustive or as extending the sense which might otherwise have been given to that definition. His Honour added: The word 'deemed' may be used in either sense, but it is more commonly used for the purpose of creating what James LJ and Lord Cairns LC called a 'statutory fiction' … that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate. When used in that sense it becomes very important to consider the purpose for which the statutory fiction is introduced. 20 The Full Court went on to hold that s 494C(5) does not create a rebuttable presumption capable of being displaced by proof that a document transmitted by email was not in fact received at all. In doing so, their Honours had regard to extrinsic materials relevant to the interpretation of ss 494A, 494B and 494C of the Act, extracted in part below. 21 Section 494C was introduced by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth) (Amending Act). Immediately prior to the enactment of the Amending Act, the time at which an electronic communication was deemed to have been received was governed by the Electronic Transactions Act 1999 (Cth) (ET Act). The operation of the ET Act, and the purpose of the Amending Act, are expressed in the Explanatory Memorandum accompanying the relevant Bill as follows: 159 New section 494C provides rules for determining the time when a person is taken to have received a document. The section incorporates the deemed receipt elements of current subsections 53(3) and 53(6), together with regulation 5.03 of the Migration Regulations. … 162 New subsection 494C(6) provides that subsection 494C(5) applies despite section 14 of the [Electronic Transactions Act 1999 (Cth) (ET Act)]. The effect of this provision is to disapply the deemed receipt provisions of the ET Act in favour of the deemed receipt provision in subsection 494C(5), as this is more certain than the modes in section 14. 163 In general terms, section 14 of the [ET Act] provides that the time for receipt is when the electronic communication enters the information system of the addressee. This might never be known by the originator of the communication. There is a need in the migration context for receipt to be easily determinable for the purposes of establishing the date from which the time for making a review application begins to run. Given this, it was preferable to expressly provide for deemed receipt in Schedule 3 to the Bill and not rely on the default provisions in section 14 of the [ET Act]. 22 The Explanatory Memorandum makes it clear that the purpose of enacting the provisions was to displace the provisions of the ET Act because the newly enacted provisions "provide more certainty": Tay at [26]. 23 Counsel for the appellant submitted that the objective of certainty would be equally satisfied if s 494C(5) of the Act were construed so as to deem receipt of an emailed document to have occurred at the first moment on the day after transmission. I accept that the words "at the beginning of the day" would achieve the same degree of certainty as the words "at the end of the day". However, it remains that the legislature has used the form of words enacted in s 494C(5) and no other form of words. The provision could well have contained the words "at the beginning of the day following the day upon which the document is transmitted" but it does not. 24 In that regard, I reject the appellant's submission to the effect that the text of s 494C(5) is concerned only with shifting the time of deemed receipt away from the time of actual transmission by units of time measured in days and not by any smaller unit of time. Whilst it is true that the legislature might have instead used the words "on the day" rather than "at the end of the day", there are at least two evident purposes for using the latter phrase rather than the former. By fixing the relevant time at the final moment of a day, the legislature has enacted a deemed point in time that will, in all cases, occur after the time of actual transmission and not before. The Act would work an oddity if a document were to be deemed to have been received at a point in time prior to its actual transmission. 25 Furthermore, the words "at the end of the day" are more aligned with the purpose for which s 494C(5) of the Act was enacted, that is, to achieve a greater degree of certainty than that previously provided for under the ET Act. The phrase "on the day" achieves less certainty than the previously applicable ET Act provisions. In light of that difference between the two phrases, I do not accept the appellant's submission that the words "at the end of the day" would be superfluous on the construction adopted by the Tribunal as affirmed by the learned FCC judge. The words supply a greater degree of certainty. 26 The appellant's argument drew support from s 38B(4) of the Act, which provides that a maritime crew visa held by a person "ceases to be in effect … at the end of the day" on which the Minister makes a declaration under s 38B(3) (absent the Minister specifying another time). That is a context in which the identification of the precise time of the occurrence of an event assumes some importance. Counsel's written submission in connection with s 38B(4) proceeded as follows: 15 It is significant because for the purpose of section 38B(4) the relevant deemed event (the visa ceasing to be in effect) must for the sensible operation of that section occur for the first time on the first moment of the day after the day on which the declaration is made, and not at the last moment on the same day as the Minister's declaration. That is to say, the person will have a visa for so long as it remains the day on which the declaration was made but as soon as it is the next day the visa ceases. (emphasis added) 27 I agree with counsel's submission insofar as it acknowledges that a person affected by a declaration made under s 38B will "have a visa for so long as it remains the day on which the declaration was made". Beyond that, the submission should be rejected. The provision is concerned with identifying the point in time in which a person's visa "ceases to be in effect". The statutory consequence of that event is that the person may become, from that moment, an unlawful non-citizen within the meaning of s 14 of the Act. There is nothing in s 38B(4) to support the appellant's construction that any "event" occurs on the first moment of the day following the Minister's declaration. Rather, the provision operates such that at and from the first moment of the day following the Minister's declaration, the person no longer holds a visa that is in effect, the visa having ceased at the final moment of the previous day. The Tribunal's interpretation of s 494C(5) of the Act is, in my opinion, consistent with the meaning of the words "at the end of the day" in s 38B(4), properly construed. 28 Finally, it was submitted that s 494C(5) should be construed against the principle that legislation is presumed not to in interfere with fundamental common law rights or significant statutory rights: see Buck v Comcare (1996) 66 FCR 359 at 364 - 365 (Finn J). The statutory right to merits review of the Delegate's decision was submitted to be such a right, justifying an interpretation of s 494C(5) that did not impinge upon the right of review, or the consequent availability of rights of judicial review to the FCC and rights of appeal to this Court. 29 The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made. However, that harsh consequence is one brought about not so much by s 494C(5) of the Act, but rather by s 347(1)(b)(iii) and by the absence of any provision granting a discretionary power on the Tribunal to alter the statutory time frame. 30 As I have said, s 494C(5) applies in statutory contexts other than the present context. In the present context, it is only by its operation in conjunction with s 347(1)(b)(iii) of the Act and r 4.10 of the Regulations that an adverse consequence is visited upon the appellant. In my opinion, s 494C(5) is, in and of itself, agnostic as to its consequences. Support for that conclusion is found in the array of other provisions in which the phrase "at the end of the day" is used, some of which potentially affect significant statutory rights and others of which do not. The same phrase, for example, is adopted in provisions deeming the time of receipt of documents transmitted electronically by the Migration Agents Registration Authority (s 332H), the Tribunal (s 379C(5) and s 441C(5)) and the Immigration Assessment Authority (s 473HD(5) and s 473HE(4)). Any presumption of construction of the kind relied upon by the appellant is, in my opinion, displaced by the text, context and purpose of the provision itself and the importance of giving the same phrase a consistent meaning throughout the same enactment. The presumption does not operate so as to substitute the ordinary meaning of the text with alternative words that would deem the appellant's receipt of the Delegate's decision to have occurred on 24 October 2015, rather than at the end of 23 October 2015. 31 The appeal should be dismissed. 32 I will hear the parties as to costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.