Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 (12 November 2003)

Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292

MIGRATION - visa - bridging visa - to expire 28 days after applicant notified of decision on substantive visa - letter of delegate of Minister advising of the refusal to grant substantive visa - statement of time for review calculated by reference to regulation - whether regulation invalid - whether letter stated time for review - whether applicant notified of decision - whether notification - whether bridging visa still in force - whether applicant's continued detention lawful - whether discretion not to order release

WORDS AND PHRASES - `notified', `notify', `notification'

Migration Act 1958 (Cth) ss 5, 53, 66, 189, 196, 338, 347, 411, 412, 414, 477, 494A-494D, 501G, 504

Judiciary Act 1903 (Cth) s 39B

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Acts Interpretation Act 1901 (Cth) ss 29, 46

Evidence Act 1995 (Cth) s 160

Migration Regulations 1994 (Cth) regs 2.16, 4.10, 4.31, 5.03, Sch 2 item 010.5

Migration Amendment Regulations 2000 (No. 3) (Cth) reg 3, Sch 2 item 1

Migration Amendment Regulations 2001 (No. 6) (Cth) reg 3, Sch 1 item 29

Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1209 - not followed

VHAF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1243 - applied

Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 (2002) 196 ALR 111 - applied

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (1998) 194 CLR 355 - considered

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377 (2000) 98 FCR 77 - followed

Li v Minister for Immigration & Multicultural Affairs [1999] FCA 1147 (1999) 94 FCR 219 - applied

Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327 - considered

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56 - considered

CHAN TA SREY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

1. The applicant be released from detention forthwith.

2. The motions the subject of paragraphs 1 and 2 of the notice of motion filed on 3 November 2003 be dismissed.

3. The respondent pay the applicant's costs of the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

1 The applicant has applied to be released from immigration detention, on the basis that his detention is not sanctioned by the Migration Act 1958 (Cth) (`the Migration Act'), and is therefore unlawful. His application is an application for an order in the nature of a writ of habeas corpus, requiring the applicant's immediate release. It was made orally to me as duty judge on 6 November 2003, in the course of motions for leave to appeal from an interlocutory judgment in another proceeding, and for an expedited hearing of the appeal. The notice of motion with which I was then dealing contained a prayer for further or other orders, which permitted the making of the application.

2 Because the essential question is whether the Migration Act justifies the detention of the applicant, the matter is one arising under a law made by the Parliament of the Commonwealth of Australia and therefore falls within the original jurisdiction of this Court, conferred by s 39B(1A) of the Judiciary Act 1903 (Cth) (`the Judiciary Act').

3 The applicant is a citizen of Cambodia. On 9 September 1997, he arrived in Australia as the holder of a Short Stay (Visitor) (Class TR) visa, subclass 676, valid until 26 November 1997. On 26 November 1997, he was granted a Long Stay (Visitor) (Class TN) visa, subclass 686, valid until 30 April 1998. On 2 January 1998, he married an Australian citizen. On the basis of his marriage, he applied for an Extended Eligibility (Temporary) (Class TK) visa and a General (Resident) (Class AS) visa. The application is dated 25 February 1998, but it is not clear from the evidence when it was lodged. At the time, the scheme of the Migration Regulations 1994 (Cth) (`the Migration Regulations') involved the granting of the first kind of visa, followed by the lapse of two years to enable a judgment to be made as to the genuineness and subsistence of the relationship on which it was based, in order that the grant of the permanent visa could be considered.

4 In the application, the applicant gave as his address for correspondence Bui's Migration Services, of PO Box 405, Bankstown, NSW, 2200. The application included an application for a bridging visa, in order to avoid the applicant having the status of an unlawful non-citizen under the Migration Act, pending consideration of his application for a substantive visa. He was granted a bridging visa A. On 10 March 1998, he applied for permission to work, which was granted on 17 March 1998.

5 On 19 May 2000, a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, `the Minister') signed a letter addressed to the applicant, C/-Bui's Migration Services, PO Box 405, Bankstown, NSW, 2200. The letter advised the applicant that his application to remain permanently in Australia had been refused. It informed him that he had been assessed against the criteria in subclasses 820 and 801 in Sch 2 to the Migration Regulations. It attached a statement explaining the reasons for the refusal. The letter also contained what purported to be an explanation of the applicant's current immigration status and the options available to him as a result of the refusal of his application. It advised him that his bridging visa would remain in effect until midnight on 23 June 2000, `that is, 35 calendar days from the date of this letter.' It also advised him of his option to seek review of the decision in the following terms:

`You can apply to the Migration Review Tribunal for this decision to be reviewed. If you decide to apply for review, you must lodge the review application at a registry of the Tribunal before close of business on 16 June 2000, that is, within 28 days of the date of this letter, and pay the prescribed fee.

The enclosed leaflet provides information about review by the Tribunal, including addresses where the application can be lodged. If you need further information about review by the Tribunal, you should contact one of the registries listed in the leaflet.' (Emphasis added)

6 It is common ground in the present proceeding that this letter was posted. There is no evidence that it was not received by the applicant's migration agent. There is evidence, from the applicant's solicitor, of his information and belief to the effect that the applicant did not actually become aware of the decision on his application at the time. There is no evidence as to what attempts, if any, the applicant made to maintain contact with his migration agent, or to ensure that his migration agent could contact him. In fact, the applicant appears to have gone into hiding.

7 On 18 September 2003, the applicant was apprehended at a house in Clayton. In an interview with an officer of the Department of Immigration and Multicultural and Indigenous Affairs (`the Department'), conducted through an interpreter, the applicant said that he did not hold a current visa, that he was divorced from his wife and looking for another girl to help him. At the time, he was living at the house in Clayton with his girlfriend and her son. He had lived there for one month and had known her for about six months. Following the interview, the applicant was taken into detention, pursuant to s 189 of the Migration Act.

8 On 24 September 2003, the applicant applied for a bridging visa E. On the same day, he was granted a bridging visa E and was released from detention. The bridging visa was valid until 2 October 2003 and was granted on the ground that he intended to depart from Australia. Among the conditions attached to the visa were conditions that the applicant present a ticket for his departure from Australia by 2 October 2003 and leave Australia by that date. It was also determined that a security was a necessary incentive to encourage compliance, and the amount of the security was set at $30 000.00. It appears that the security was paid. On 2 October 2003, the applicant's bridging visa E was extended until 10 October 2003. The conditions were varied so as to require him to present a ticket to depart on 7 October 2003 and to depart by 10 October 2003.

9 On 6 October 2003, the applicant applied to this Court, pursuant to s 39B of the Judiciary Act and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), for relief in respect of the decision made on 19 May 2000 to refuse to grant him a visa. The proceeding is no V936 of 2003. The substantive ground of the application was that the applicant had a child who is an Australian citizen, born on 19 January 1999, and was entitled to a visa on the basis that he met the criterion for a spouse whose relationship had ceased but who is a parent of an Australian citizen child. It is unclear whether, and in what context, the application is intended to raise the question of the validity of notification of the decision of the Minister's delegate in May 2000. In the application, one of three grounds for contending that the time limit for an application to the Court, now found in s 477(1) of the Migration Act, is inapplicable to the applicant was that he has never been lawfully notified of the decision in accordance with s 66(2) of the Migration Act. In addition, part of the relief sought is a declaration that the letter sent to the applicant by the delegate, informing him of the decision, did not meet the mandatory requirements of s 66(2) of the .

10 On 14 October 2003, because his bridging visa E had expired, the applicant was again detained pursuant to s 189 of the Migration Act. He has remained in detention since that date.

11 Having filed his application to this Court, through his solicitor, the applicant applied to the Department to vary the conditions in his bridging visa E. This application was treated as an application for a new bridging visa E, based on the proceeding instituted by the applicant. On 15 October 2003, a delegate of the Minister refused to grant a new bridging visa E on the basis that the applicant would fail to comply with the conditions of any bridging visa E issued to him.

12 On 15 October 2003, the applicant applied to the Migration Review Tribunal (`the MRT') for review of the decision of the delegate of the Minister on that day to refuse to grant a bridging visa E. On 23 October 2003, the MRT gave its decision, affirming the decision under review, finding that the applicant was not entitled to the grant of such a visa. It is apparent from its reasons for decision that the MRT took the view that the applicant was not an unlawful non-citizen, because his bridging visa A was still in force. Because he was neither an unlawful non-citizen, nor the holder of a current bridging visa E, the applicant did not satisfy a criterion for the grant of a bridging visa E. The MRT accepted a submission by the applicant's solicitor that the letter dated 19 May 2000 did not comply with s 66(2) of the Migration Act and that, therefore, the applicant had not been notified of the decision and the time for expiration of the bridging visa A, or for seeking merits review, had not begun to run.

13 On 23 October 2003, the applicant filed in proceeding no V936 of 2003 a notice of motion, returnable on 24 October 2003 at 2.15 pm, and an affidavit in support. Among the orders sought in the notice of motion was an order that the applicant be released from detention. Marshall J as duty judge heard the motion on 24 October 2003. On 29 October 2003, his Honour delivered judgment, dismissing the motion with costs and making orders for the preparation for hearing of proceeding no V936 of 2003. Those orders included an order that the matter be heard on 2 December 2003.

14 His Honour's reasons for judgment are found in Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1209. Although his Honour expressed the view at [4] that there was a serious issue to be tried in the substantive proceeding, he considered that the applicant's claims were doubtful, and that a marked balance of convenience would be required in favour of the applicant for the order sought to be made. His Honour considered that the argument that there had been no notification of the decision to refuse the application for a visa, because the letter of 19 May 2000 did not comply with s 66(2)(d)(ii) of the Migration Act, not to be strong. His Honour viewed the question as whether the notification was void for failing to specify a period provided for in the Migration Act. Applying the principles laid down in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (1998) 194 CLR 355, his Honour could not see a legislative purpose inherent in the Migration Act, which would invalidate a notification allowing a greater time to seek a review than the time actually required by the Migration Act or the Migration Regulations. As his Honour saw it, the case was one in which a failure to state the actual time limit accurately would make no difference to whether or not a right of review would be exercised. On the basis of the applicant's history, including a history of working unlawfully, hiding from officers of the department, and failure to abide by the conditions of the bridging visa E concerning production of a ticket and departure from Australia, his Honour found that it was likely that, if released, the applicant may seek to evade migration authorities. He therefore found a balance of convenience against the applicant.

15 On 3 November 2003, the applicant filed the notice of motion initiating the proceeding that came before me, which was designated as no V995 of 2003. In the notice of motion, the applicant sought leave to appeal to a Full Court from the interlocutory judgment of Marshall J of 29 October 2003 and an expedited hearing of the appeal. The notice of motion was originally returnable on 5 November 2003. On that day, the solicitor for the respondent sought an adjournment for one day, on the ground of short service. As 4 November 2003 had been a public holiday in Melbourne, it was appropriate to grant the adjournment. I granted it and, because of the short service, ordered that the applicant pay the respondent's costs of the adjournment.

16 The motion then came on for hearing on 6 November 2003. In the course of argument, I suggested to counsel for the applicant that the grant of leave to appeal would be inappropriate, because the substantive proceeding was to be heard on 2 December 2003. If, as counsel for the applicant was contending, the continued detention of the applicant was unlawful, because not authorised by the Migration Act, it would be open to the applicant to apply at any time for an order in the nature of a writ of habeas corpus, to secure his release. Counsel for the applicant obtained instructions to make such an application, and made it, in the course of argument.

17 It therefore falls to me to determine whether the detention of the applicant is lawful, not on an interlocutory basis but on a final basis. It was common ground that the continued detention of the applicant would be unlawful if he is not an unlawful non-citizen, but in fact holds a bridging visa A. There is no authority other than s 196 of the Migration Act for the continued detention of the applicant. Nothing in s 189 or s 196 justifies his continued detention if he in fact holds a visa (see VHAF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1243 at [76] - [81] and Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 (2002) 196 ALR 111 at [149] - [152]). It was also common ground that the question whether the applicant's bridging visa A is still in force depends upon whether he received notification of the decision to refuse him a substantive visa. In turn, this question depends upon whether the letter dated 19 May 2000 is to be regarded as such notification.

18 Both in May 2000 and at the present time, s 66 of the Migration Act provided and 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.

(2) Notification of a decision to refuse an application for a visa must:

(a) if the grant of the visa was refused because the applicant did

not satisfy a criterion for the visa¯specify that criterion; and

(b) if the grant of the visa was refused because a provision of this

Act or the regulations prevented the grant of the visa¯specify

that provision; and

(c) unless subsection (3) applies to the application¯give written

reasons (other than non-disclosable information) why the

criterion was not satisfied or the provision prevented the

grant of the visa; and

(d) if the applicant has a right to have the decision reviewed

under Part 5 or 7 or section 500¯state:

(i) that the decision can be reviewed; and

(ii) the time in which the application for review may be

made; and

(iii) who can apply for the review; and

(iv) where the application for review can be made.

(3) This subsection applies to an application for a visa if:

(a) the visa is a visa that cannot be granted while the applicant is

in the migration zone; and

(b) this Act does not provide, under or , for an application

19 In May 2000, s 53 of the Migration Act dealt with the ways in which the Minister could give notification to an applicant for a visa. Relevant to this proceeding are the following subsections:

_`(4) An applicant may tell the Minister that a specified person at a

specified address may be given notifications for the applicant about

_

the application.

...

(6) If the Minister has been given the name and address of a person under

subsection (4), the Minister must give notifications to the applicant

by giving them to that person at that address and a notification so

given is taken to have been received by the applicant.'

20 Section 53 has since been repealed. There are now provisions relating to the giving of documents by the Minister to a person in s 494A-494D of the Migration Act. These more recent provisions are not relevant to the present case.

21 The reference in s 66(1) to `the prescribed way' prompts reference to the definition of the word `prescribed' in s 5(1) of the Migration Act. It means prescribed by regulations. Section 504 of the Migration Act contains a power to make regulations. Section 504(1) is expressed in general terms, but contains specific matters about which regulations may be made. They include:

`(e) making provision for and in relation to:

(i) the giving of documents to;

(ii) the lodging of documents with; or

(iii) the service of documents on;

the Minister, the Secretary or any other person or body, for the

purposes of this Act'.

22 Section 504(3) provides:

`The regulations that may be made under paragraph (1)(e) include, but are not limited to, regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of this Act and the regulations to have been received by the person at a specified or ascertainable time.'

23 Section 504(3A) provides:

`The Evidence Act 1995 does not affect the operation of regulations made for the purposes of paragraph (1)(e).'

24 The prescribed way of notifying an applicant of a decision to refuse a visa, so far as relevant to this case, is found in reg 2.16 of the Migration Regulations, in the following terms:

_`(1) For the purposes of subsection 66 (1) of the Act (dealing with giving

notice of decisions), 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:

(i) the last address given to the Minister by the applicant

under subsection 53 (4) of the Act'.

25 No issue arises in the present proceeding as to the way of giving notice. It is accepted that the applicant had told the Minister that a specified person at a specified address may be given notifications and that the letter of 19 May 2000 had been sent to that specified person at that specified address. The argument focused on the accuracy of the advice given, in purported compliance with s 66(2)(d)(ii), as to the time in which an application for review of the decision to refuse to grant the visa might be made. For this question, a number of provisions of the Migration Act and the Migration Regulations as to time limits are relevant.

26 Section 347(1)(b)(i), combined with s 338(2), had the effect that an application to the MRT to review the decision of the Minister's delegate of 19 May 2000 was required to `be given to the Tribunal within the prescribed period, being a period ending not later than ... 28 days after the notification of the decision'. For this purpose, the prescribed period was to be found in reg 4.10 of the Migration Regulations, particularly in reg 4.10(1)(a), which is applicable to decisions of the kinds mentioned in s 338(2) of the Migration Act. According to this regulation, the period in which an application for review must be given to the MRT `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'. It should be noted that reg 4.10 contains a range of time limits, depending upon the kind of decision of which review is sought. The shortest period is two working days after the notice is received. The longest is 70 days after the notice is received. There is also a period of five working days after the day on which the notice is received. The shorter periods have no direct relevance to the present case, but are relevant to the question of the validity of reg 5.03 of the Migration Regulations. Regulation 5.03, as it stood in May 2000, contained a deeming provision as to when a document was to be taken to have been received. It provided as follows:

_`(1) For the purposes of the Act and these Regulations, and subject to

the Act and specific provision elsewhere in these Regulations, a

document is taken to be received by the person to whom it was sent

at the time that the document is taken to be received at the address to

_

which the document is sent, which is either:

(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) if the document is sent from:

(i) a place outside Australia to an address in Australia; or

(ii) a place in Australia to an address outside Australia; or

(iii) a place outside Australia to an address outside

Australia;

21 days after the date of the document.'

(2) Subregulation (1) does not apply to a document unless it is sent

within 7 days after the date of the document.'

27 Subregulation (2) was amended by reg 3 and item [1] of Sch 2 of the Migration Amendment Regulations 2000 (No. 3) (Cth), with effect from 1 July 2000, by changing `7 days' to `3 days'. The amendment appears to have been made in the light of the judgment of the Full Court in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377 (2000) 98 FCR 77, to which I shall refer in more detail later in these reasons for judgment. Regulation 5.03 was subsequently repealed by reg 3 and item [29] of Sch 1 of the Migration Amendment Regulations 2001 (No. 6) (Cth).

28 For present purposes, it is also necessary to refer to item 010.5 in Sch 2 to the Migration Regulations. Item 010.511(b)(ii) provides that a bridging visa permits its holder to remain in Australia until 28 days after the holder is `notified' of the refusal to grant a substantive visa.

29 It appears that the information in the letter of 19 May 2000 as to the date of expiration of the applicant's bridging visa A, and as to the period within which he could apply for review of the decision to refuse to grant his substantive visa, was calculated by reference to the combined effect of reg 5.03 and item 010.511(b)(ii) in the one case, and reg 5.03 and reg 4.10(1)(a) in the other case. The advice to the applicant that his bridging visa A would expire 35 days after the date of the letter was probably based on the addition of the seven day period referred to in reg 5.03(1)(a) to the 28 day period referred to in item 010.511(b)(ii). Similarly, the advice that an application for review must be lodged at a registry of the MRT within 28 days of the date of the letter was probably based on the addition of the seven day period referred to in reg 5.03(1)(a) to the 21 day period referred to in reg 4.10(1)(a). Information as to the date when the bridging visa would cease to have effect was not required by s 66 of the Migration Act. Information as to the time in which the application for review might be made was required by s 66(2)(d)(ii).

30 On the face of the Migration Regulations, the information given in the letter of 19 May 2000 was correct. The problem was that, on 4 April 2000, a few weeks before 19 May 2000, the Full Court had given judgment in Singh. Counsel for the applicant in the present case argued that, by reason of that judgment, reg 5.03 was invalid and had to be disregarded. As a consequence, the statement in the letter of 19 May 2000 as to the 28 day period from the date of the letter for the lodging of an application to review the decision was inaccurate. It is therefore necessary to examine the judgment in Singh, for the purpose of determining whether reg 5.03 was to be regarded as valid.

31 Singh was concerned with an application for a protection visa, and with a decision of the Refugee Review Tribunal (`the RRT') that it did not have jurisdiction to review a decision of a delegate of the Minister refusing such a visa, because the application for review was not brought within the time prescribed under s 412(1)(b) of the Migration Act and reg 4.31 of the Migration Regulations. Those provisions are the counterparts to s 347(1)(b) of the Migration Act and reg 4.10 of the Migration Regulations, in the regime of provisions dealing with protection visas. Importantly, in the case of an application by a person in immigration detention, by reg 4.31(2)(a), the period for seeking review of a decision relating to a protection visa began on the day on which the person applying for it was notified of the decision and ended at the end of seven working days, beginning on the first working day that occurred on or after that day. Mr Singh was not in detention. The primary judge had set aside the decision of the RRT and remitted the matter to the RRT with a direction that it hear and determine Mr Singh's claim for a protection visa on the merits. His Honour had held that the RRT had erred in holding that the application was not made within the prescribed time. The Minister appealed and the Full Court dismissed the appeal, by majority. On the question of the validity of reg 5.03, there was a difference of view between the majority, O'Connor and Mansfield JJ, who held the regulation to be invalid, and Tamberlin J, who held it to be valid.

32 It is the reasoning of the majority with which I am most closely concerned in the present case. As their Honours said at [22], the submission on behalf of Mr Singh was that reg 5.03 was invalid because it was `manifestly absurd in its effect'. Mr Singh relied on remarks made by Gyles J in Li v Minister for Immigration & Multicultural Affairs [1999] FCA 1147 (1999) 94 FCR 219 at [33] - [36] and [45] - [50]. The remarks were expressly stated by Gyles J to be unnecessary to his judgment in that case. His Honour was dealing with a 21 day time limit under reg 4.10(1)(a)(ii) of the Migration Regulations and with s 347(1)(b) of the Migration Act. At the time, s 347(1)(b) was in a different form from the form it took at the time of the events relevant to the present case, but the differences were not of substance. Gyles J expressed the view that reg 5.03 was invalid, at least in so far as it operated in relation to the time limits imposed by s 347(1).

33 In Singh, at [36] - [40], O'Connor and Mansfield JJ gave a detailed analysis of Li and set out extracts from the remarks of Gyles J. At [44], their Honours recognised that reg 5.03 could operate to abridge the time limits prescribed by reg 4.31, and to do so in a way which might effectively render the right of review nugatory. They referred to the seven working day time limit applicable to people in detention and seeking protection visas. If the document were posted on the seventh day after it was dated, in accordance with reg 5.03(2), their Honours took the view that it would arrive on or after the last day of the seven working day time limit, but would be deemed by reg 5.03 to have arrived on the seventh day after the date the document bore. At [48], their Honours said:

`We do not consider that a regulation which has those effects in relation to the time limits imposed by reg 4.31 in accordance with s 412 is, in reality, a regulation which is consistent with the Act. It is not consistent with the existence of the right of review which ss 411 and 414 of the Act grants, albeit to be exercised within the time limits to be fixed by prescription (and so fixed by reg 4.31), to provide for circumstances where that right of review may in reality be non-existent or in practical terms be incapable or almost incapable of being properly exercised.'

34 After referring to the remarks of Gyles J in Li, O'Connor and Mansfield JJ said at [51]:

`Accordingly, in our judgment, reg 5.03 is invalid insofar as it purports to operate in respect of the time limits imposed by reg 4.31 pursuant to s 412 of the Act.'

35 It is clear that the view taken by O'Connor and Mansfield JJ was the essence of their Honours' reasoning leading to the dismissal of the Minister's appeal in Singh. It is therefore binding on me. I should say that I do not find the reasoning entirely satisfactory. I do not see how one regulation can be held to be an invalid exercise of a power to make regulations, as a result of its effect in conjunction with another regulation. It may be that the overall scheme, under which a time limit fixed by one regulation was rendered nugatory by a provision of another regulation, required the conclusion that the regulation-making power had not been exercised properly. I do not see how the choice can be made to hold that one of the regulations concerned is invalid, but not the other. There is no doctrine, so far as I am aware, of invalidity of one provision of regulations on the ground of repugnance with another. The task of the Court is to ask whether the power to make delegated legislation has been exercised in a way permitted by the relevant statute. On the reasoning of the majority in Singh, it might equally have been said that reg 4.31(2)(a), which imposed the time limit of seven working days from the date of the document, was invalid, because in conjunction with reg 5.03 it might have operated to the disadvantage of some people. Even if it could be accepted that reg 5.03 was invalid in relation to shorter time limits in other regulations, I do not see how it could be said that the regulation was totally invalid in respect of all time limits. There can be no doubt that, with respect to 21 day and 70 day time limits, reg 5.03 was perfectly capable of operating. In those circumstances, it might have been expected that s 46(1)(b) of the Acts Interpretation Act 1901 (Cth) (`the Acts Interpretation Act') might have been applied, so as to read down reg 5.03, to preserve its application to the longer time limits. The application of that provision would have changed the result in because Mr Singh was not in detention and the seven working day time limit did not apply to him.

36 Notwithstanding my reservations about the reasoning in Singh, as I have said, it is binding on me. It is not possible for me to distinguish the reasoning in that case simply because the present one involves different provisions of the Migration Regulations, containing different time limits. The majority in Singh followed the remarks of Gyles J in Li, which were made in respect of the provisions relevant in the present case. The effect of reg 5.03 in relation to the two working days and five working days time limits in reg 4.10(1)(b) is even more conclusively against its validity than was its effect in relation to the seven day working time limit considered in Singh. The view of the majority in Singh appears to have been accepted by the Minister and to have resulted in the amendment, and possibly the later repeal, of reg 5.03. In my view, I am bound by that reasoning to hold that reg 5.03 was invalid in relation to time limits, and should be disregarded.

Did the purported notification state the time for review?

37 It is now necessary to determine whether the effect of disregarding reg 5.03 is to render incorrect the advice, given to the applicant in the letter of 19 May 2000, as to the time within which he was obliged to make an application to review the decision of the Minister's delegate. In the absence of the deeming provision in reg 5.03, it is necessary to look to other statutory provisions dealing with the service of documents by post. Section 29 of the Acts Interpretation Act provides:

_`(1) Where an Act authorizes or requires any document to be served by

post, whether the expression "serve" or the expression "give" or

"send" or any other expression is used, then unless the contrary

intention appears the service shall be deemed to be effected by

properly addressing prepaying and posting the document as a letter,

and unless the contrary is proved to have been effected at the time

at which the letter would be delivered in the ordinary course of post.

_

(2) This section does not affect the operation of section 160 of the

Evidence Act 1995.'

38 The effect of s 160 of the Evidence Act 1995 (Cth) (`the Evidence Act') is to presume that a postal article sent by prepaid post addressed to a person at a specified address in Australia was received at that address on the fourth working day after having been posted. A definition of `working day' in subs (3) excludes Saturdays, Sundays and public holidays or bank holidays in the place to which the postal article was addressed. There is a question whether s 160 of the Evidence Act is applicable at all. It will be recalled that s 504(3A) of the Migration Act expressly excludes the operation of the Evidence Act in relation to regulations made pursuant to s 504(1)(e) of the Migration Act. What seems to have been contemplated was that provisions of the Migration Regulations about the time when documents were to be taken to have been received (expressly contemplated by s 504(3)) would constitute a code on that subject, so that there would be no need for of the to be considered. The question is whether, in the absence of a valid regulation made pursuant to of the , of the kind contemplated by , there is room for the operation of On the one hand, could be construed as dealing only with a deeming provision of the kind contemplated by , and as non-operative in the absence of such a deeming provision. On the other hand, it is capable of being construed as an exclusion of of the in respect of all regulations made pursuant to s 504(1)(e), whether or not containing such a deeming provision. The question was not argued before me. I incline to the view that a purposive construction would lead to the adoption of the former view, that subs (3A) was intended only to operate on a provision such as reg 5.03. On this view, of the would be applicable once it was determined that reg 5.03 was invalid.

39 It is obvious that, for the purposes of s 29 of the Acts Interpretation Act and s 160 of the Evidence Act, the calculation of any relevant period by reference to the arrival of a postal article at its specified address is dependent on a calculation from the date of posting, and not from the date borne by the document. No doubt, reg 5.03 was introduced in an attempt to overcome the inconvenience resulting from the need to prove the date of posting of a document, the need to establish (by judicial notice or otherwise) the ordinary course of post and the possibility that the presumption set up by s 160 of the Evidence Act might be rebutted by evidence to the contrary. It follows that the advice in the letter of 19 May 2000 as to the period within which an application for review must be lodged, calculated from the date of the document, was misleading. Of course, it might have been correct. If there had been evidence as to the date of posting of the letter of 19 May 2000 and if there had been no evidence to rebut the four working day presumption, it might have turned out that the advice was in fact correct. The correctness would have been accidental, however. The point is that to give advice by reference to the date of the document itself was to give incorrect advice if reg 5.03 were inapplicable. It is not to the point to say that, in the absence of reg 5.03, it is extremely difficult to comply with s 66(2)(d)(ii) of the Migration Act, because to do so would involve explaining the effect of of the and of the , and the possible effect of evidence as to the ordinary course of post or the actual time of arrival of the postal article. The invalidity of reg 5.03 leads to the conclusion that such advice was required, whether difficult to give or not. It certainly was not impossible. What required was a statement of the time in which the application for review may be made. The difficulty of making an accurate statement cannot be relied on to exempt the delegate of the Minister from the requirement to make such a statement, or to permit the making of an inaccurate statement.

40 The advice given in the letter of 19 May 2000, that a review application was required to be lodged before close of business on 16 June 2000, that is within 28 days of the date of the letter, had the consequence that the letter did not fulfil the requirement of s 66(2)(d)(ii) of the Migration Act that a notification state the time in which the application for review may be made.

41 The crucial question for this proceeding is whether the absence from the letter of 19 May 2000 of a statement complying with s 66(2)(d)(ii) of the Migration Act leads to the conclusion that the applicant was not `notified' of the refusal to grant a visa, within the meaning of item 010.511(b)(ii) in Sch 2 to the Migration Regulations. If he was not notified of the refusal in accordance with that provision, then his bridging visa A did not expire and continues to entitle him to be treated as a lawful non-citizen. The question, then, is what constitutes being `notified' of the refusal to grant a visa for the purposes of that provision.

42 In the course of argument, there was a tendency for counsel for both parties to treat this question as being one of the `validity' of the letter of 19 May 2000 as a notification, for the purposes of s 66. To some extent, focusing on the question of `validity' is distracting. As I have said, the real question is whether the applicant was notified of the refusal to grant a visa, so as to start time running with respect to the expiration of his bridging visa A. The principles applicable, however, might not differ very much. As Marshall J recognised, the question of `validity' depends not upon the traditional classification of statutory provisions into mandatory or directory, but on the application of the principles discussed in Project Blue Sky. It is necessary to ascertain the intention of the legislature as to whether non-compliance with a statutory requirement should result in the act concerned having no effect. The question of legislative intention is also highly relevant, when asking the question whether the applicant was notified of the result. It is complicated to some extent by the fact that the provision to be construed is found in a regulation.

43 Section 46(1)(a) of the Acts Interpretation Act provides that, where an Act confers power to make regulations, unless the contrary intention appears, expressions used in the regulations have the same meanings as in the Act conferring the power. I can find no evidence of the intention that the word `notified' in item 010.511(b)(ii) should bear a different meaning from the word `notifications' in s 53(4) and (6), or the words `notify' in s 66(1) and `notification' in s 66(2), of the Migration Act. The provision in the Migration Regulations is plainly intended to refer to the same act of giving notice as is referred to in ss 53 and 66 of the Migration Act, and in the provisions of the Migration Regulations dealing with time limits for applications for review.

44 All of the provisions of the Migration Act and the Migration Regulations to which I have referred reflect a clear scheme. The scheme is that steps should be taken to notify a person of a decision relevant to that person. The result of those steps is to be a notification. Its effect is that the person is notified of the decision. The time limit for an application to review runs from the time of that notification. The time limit for the expiration of a bridging visa runs from the same time. There is an obvious relationship between the time limits on applications for review and the duration of a bridging visa. The intention of item 010.511(b)(ii) is to keep alive the bridging visa until after the time for making an application for review has expired. Item 010.511(b)(iii) then provides for a further extension of time until 28 days after the notification of the decision of the review authority, or of a subsequent review authority.

45 The evident purpose of the provisions in s 66(2) of the Migration Act is to ensure that the legislative scheme in relation to rights of review of decisions operates fairly. The intention is that not only should an unsuccessful applicant for a visa be told that his or her application has been unsuccessful, but he or she should also be given enough information to pursue the right of review if disposed to do so. That information includes the criterion or criteria that the applicant failed to satisfy, any legislative provision that prevented the grant of a visa, in most cases the reasons why the criterion was not satisfied or the provision prevented the grant of the visa, and the steps required to make an application to review the decision. Without all of this information, an unsuccessful applicant would be disadvantaged in the operation of the scheme, in which the time limits are strict and in which there exists no power, discretionary or otherwise, to enlarge them. A bridging visa is to be kept alive, to prevent the person from becoming an unlawful non-citizen, until it can be seen whether an application for review is made and, if such an application is made, until it has been determined.

46 In this context, it is easy to see that each element of the requirements of s 66(2) is an integral part of the scheme of notification. The absence of any one item of information would disadvantage an unsuccessful applicant. There is, therefore, a strong case for saying that, if one of the requirements of s 66(2) has not been complied with, the duty of notification imposed by the section has not been carried out. Some support for this view is to be found in Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327. In that case, the MRT had decided that it had no jurisdiction to review a decision of a delegate of the Minister to refuse Ms Zhan a visa. It had done so on the basis that the application for review had been made outside the limited time after the notification of the delegate's decision. Allsop J found that the document purporting to be the notification was deficient in two respects. In the first place, it failed to specify a criterion for the visa, which Ms Zhan had not satisfied. In the second place, it failed to state where an application for review could be made, apparently because a leaflet giving the addresses of registries of the MRT had been inadvertently not included with the letter. Accordingly, the purported notification failed to comply with s 66(2)(a) and (d)(iv). His Honour made a declaration that the MRT had jurisdiction to review the decision and ordered it to do so.

47 Allsop J accepted a submission that the omissions prevented the letter and its enclosed decision record from being characterised as a `notification', or as the fulfilment of the requirement to `notify', for the purposes of ss 66 and 347(1)(b)(i) of the Migration Act. His Honour also accepted a submission that time had not begun to run against Ms Zhan under s 347(1)(b)(i) and reg 4.10 of the Migration Regulations. His Honour did note that counsel for the Minister in that case did not contend that, even if the requirements of s 66 were not met, nevertheless time otherwise ran. His Honour was therefore assuming, rather than deciding, a point that must be decided in the present case. Nevertheless, it is significant that his Honour had no difficulty accepting the view that commends itself to me, that the requirements of s 66(2) must all be met before there can be a `notification', or a satisfaction of the obligation to `notify'. Nor did his Honour have difficulty accepting that the extent of any time limit depended upon compliance with all of the requirements of s 66(2).

48 I am, of course, aware that, in his reasons for judgment of 29 October 2003 in Chan Ta Srey, Marshall J took a view obviously different from mine. At [13] - [14], his Honour did not think that there was a difficulty in relation to s 66(2)(d)(ii) about advising the applicant of what his Honour saw as being a more generous time limit than he was actually allowed. I do see such a difficulty. The provision requires that there be a statement of the time in which the application for review may be made. A statement of a time other than that in which the application to review may be made does not comply with this requirement. This is so whether the time stated is shorter or longer than the time required to be stated. In either case, an incorrect statement could cause an applicant to lose a right to apply for review. A statement of too short a time may persuade an applicant that it would now be futile to apply, because the time stated has run. A statement of too long a time could cause a person to delay applying until after the time limit has actually expired. I must also say that, in the present case, the comparison is not simply one between a 28 day limit and a 21 day limit. The comparison is between a 28 day limit from the date of the letter of 19 May 2000, and a 21 day limit from the giving of notification. As I have said, the commencement date of the latter period would depend upon the date of posting, and perhaps on the date of actual arrival. It cannot be known whether the time stated in the letter of 19 May 2000 was too long or too short, without further evidence. The important point is that what was required to be stated is not stated.

49 Marshall J also appears to have been influenced by the fact that the applicant had not acted to seek review of the decision of the delegate of the Minister. It is true that this is not a case in which an application for review has been made just outside the time limited, because of some defect in the postal system or some error. The question whether there has been compliance with s 66(2)(d)(ii) cannot depend on what the recipient or intended recipient of the purported notification does or does not do, whether before or after the purported notification is sent or received. The question of compliance is apparent on the face of the document itself. If there has been non-compliance, in my view, there is not a notification for the purposes of the legislative scheme that depends upon satisfaction of the requirements of s 66. Unlike Marshall J, I take the view that it is necessary to follow Singh, and to hold that reg 5.03 cannot be regarded as part of the legislative scheme. Also unlike Marshall J at [15] - [16], I see no incongruity between s 66(4), which operates to preserve the validity of the decision even if there is a failure to give notification of it, and the proposition that notification has not been given unless all of the requirements of s 66(2) have been carried out. If anything, the use of the words `to give notification' in subs (4) suggests that what is being cured by that subsection, so far as the validity of the decision itself is concerned, is a failure to comply with some provision of s 66(2). This suggests that s 66(4) was based on the understanding that, if a provision of s 66(2) had not been complied with, `notification' of a decision has not occurred.

50 In the present case, counsel for the Minister referred to the recent decision of the High Court of Australia in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56. That case concerned a `written notice' pursuant to s 501G of the Migration Act. Section 501G is part of a collection of provisions relating to decisions in the application of the character test. It requires that the written notice provide various items of information, somewhat similar to those required by s 66(2). One issue that was before the High Court in Palme was whether the written notice was deficient in that it failed to set out the reasons for the decision. The High Court held that the written notice was deficient in that respect. The High Court then dealt with the question whether a consequence of that deficiency was that the decision was capable of being quashed on the ground of jurisdictional error, despite s 501G(4), a provision similar to s 66(4), preserving the validity of the decision. By majority, the High Court held that the decision was not tainted by jurisdictional error because of the defect in the written notice. At [41], Gleeson CJ, Gummow and Heydon JJ said in relation to the defect in the written notice:

`What then are the consequences? The duty imposed upon the Minister was not, as was suggested in argument, a duty of imperfect obligation. That mandamus may lie to compel performance of the duty denies such a contention. Once that duty is performed, the reasons set out by the Minister may disclose error of a kind which attracts prohibition under s 75(v) of the Constitution. Yet, as has been remarked earlier in these reasons, the prosecutor does not seek mandamus, perhaps from a prudent apprehension of what may be the product of the proper discharge of the statutory duty.'

`The Minister's failure to give reasons did not leave the prosecutor without remedy. It was open to the prosecutor to seek a writ of mandamus to compel the Minister to provide reasons for the decision. If reasons were provided as the result of the issue of the mandamus, they might demonstrate an error of a kind that would attract prohibition under s 75(v) of the Constitution. But the prosecutor has not sought to obtain a writ of mandamus.'

52 The High Court was not dealing with the issue whether the written notice that did not comply with s 501G because of the absence of reasons was nevertheless a discharge of the obligation to give a written notice under that section, so as to commence any time limit running. The question was not discussed at all. If it had been, in my view, it would have been no answer to say that mandamus would be available to compel the giving of reasons in accordance with the statutory obligation. Undoubtedly, the same would be true of s 66(2)(c). The availability of a remedy of mandamus to compel the completion of the notification would be of small comfort to someone whose right to seek a review of the substantive decision disappeared through the expiry of the time limit while the process of seeking and obtaining an order for mandamus, and compliance with that order, was continuing. Nothing said in Palme resolves the crucial question in the present case.

53 A useful approach to the crucial question is to postulate a case in which the various requirements of s 66(2) of the Migration Act were complied with, but at different times. Suppose that a person who had applied for a visa was told that his or her application had been unsuccessful, with nothing more. In response to an enquiry, the person was then told what criterion he or she had failed to satisfy, or what provision of the Migration Act or the Migration Regulations prevented the grant of the visa. On pressing for reasons, the person was then told what the reasons were. An enquiry as to what could be done about the decision led to the provision of information that it could be reviewed, provided that the application for review was made by the right person, at the right place and within a limited time. At what time might it be said that the obligation to notify the person of the decision, pursuant to s 66 of the Migration Act, had been discharged? In the context of the legislative scheme of which s 66 is part, the only answer to this question can be that the obligation is discharged when all of the requirements of s 66(2) have been met. Only then can the time limit for an application to review begin to run. Only then can the time before a bridging visa expires begin to be calculated.

54 For these reasons, I am of the view that the letter of 19 May 2000, addressed to the applicant's migration agent, did not comply with s 66(2)(d)(ii) of the Migration Act, because it did not state accurately the time in which the application for review may be made. A statement of an incorrect time is not a statement for the purposes of compliance with that provision. As a consequence, the obligation to notify the applicant of the decision to refuse to grant the substantive visa he sought, imposed by s 66, was never discharged. There was no notification of that decision. In the absence of such a notification, time did not begin to run in respect of an application to the MRT to review the decision. Nor did time begin to run for the expiration of the bridging visa A held by the applicant. The consequence of this is that the applicant's bridging visa A did not expire by the effluxion of time. In the absence of evidence of any other event that would have caused the bridging visa A to cease to be operative, the applicant continues to have the benefit of that visa to the present time. He has not become an unlawful non-citizen. Whilst the decision to detain him under s 189 of the Migration Act might have been based on reasonable suspicion that he was an unlawful non-citizen (as to which I express no view), it is clear that his continued detention is unauthorised by the Migration Act and is unlawful.

55 Counsel for the Minister suggested that habeas corpus is a discretionary remedy. If it is, the area in which discretion can be exercised must be very small. It is almost unthinkable that a court would sanction the continued unlawful detention of a person. In the present case, no sound reason was advanced why any discretion to refuse to grant to the applicant an order in the nature of a writ of habeas corpus should be exercised against the applicant. An order should be made for his release from detention forthwith.

56 In the light of this order, it is plainly unnecessary to grant leave to appeal from the judgment of Marshall J of 29 October 2003. The purpose of the application for leave, coupled with an application for expedition of the appeal, was to have determined the very point that I have now determined on the oral application for an order in the nature of a writ of habeas corpus. In any event, notwithstanding my views as to the doubts attending the correctness of his Honour's decision, I should have been disposed not to grant leave. The date for the final hearing of the proceeding had been set. There would be practical difficulties in expediting the hearing of any appeal so as to provide any reasonable prospect of a Full Court hearing the appeal, and giving judgment, before judgment on the substantive matter at first instance would be given. Given that it was open to the applicant to apply at any time for an order in the nature of a writ of habeas corpus, on the assumption that his continued detention was unlawful (as he has in fact done), it would have been appropriate to refuse leave. For formal purposes, such an order will be made on the motion.

57 The question of the costs of the proceeding is not easy. The applicant has failed in relation to his original motion, but has succeeded on his oral application, in effect invoking his prayer for `such further or other order as the Court deems fit.' The material relevant to the original motion was largely, if not wholly, relevant to the application on which the applicant has succeeded. It would be difficult, if not impossible, to apportion the costs as between the aspects of the proceeding on which the applicant failed and those on which he succeeded. He has already been ordered to pay the costs of the adjournment from 5 November to 6 November 2003. In the circumstances, it seems appropriate to order that the Minister pay the applicant's costs of the proceeding.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.