Chand v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 26 October 2000 determining that it had no jurisdiction to review a decision refusing to grant protection visas to Prem Chand ("the male applicant") and Shanti Chand ("the female applicant") (together described as "the applicants"). The Tribunal decided it had no jurisdiction because the application for review to the Tribunal was made outside the time prescribed by reg 4.31 of the Migration Regulations 1994 (Cth) ("the Regulations"). 2 On 28 July 2000 the applicants applied for a protection visa and did so using a form entitled "Application for a Protection (Class XA) visa" and marked at the top "B" ("the first form"). That form was accompanied by two other forms, one with the same title and marked at the top "C" ("the second form") and another entitled "Additional information sheet for Form 866 Protection (Class XA) visa" ("the third form"). I infer from some text in the third form that the first and second forms constitute the "Form 866" (together with another form (Form A) not in evidence which I infer was an explanation sheet). The third form is a supplementary form. The significance of the contents of these forms will be discussed later. On 28 August 2000 a letter was sent by the Department of Immigration and Multicultural Affairs ("the Department") by registered mail to the male applicant advising that the applicants' application for protection visas had been refused. Both the letter and the envelope in which it was contained, was addressed to him, by name, at the address "77 Wigram Street, Harris Park, NSW 2150" ("the nominated address"). While it is ultimately of no legal relevance, on 28 August 2000 the male applicant completed a form entitled "Change of address" which was received by the Department on 4 September 2000. In that form the male applicant notified a change of address from the nominated address to another residence in the same street. On 20 September 2000 the envelope containing the letter was returned by the Post Office (unopened as an unclaimed letter) to the Department which received it on 22 September 2000. On 11 October 2000 the applicants were arrested. On 13 October 2000 they applied to the Tribunal seeking a review of the decision refusing to grant them protection visas. 3 The Tribunal concluded that the male applicant could be taken to have received, on 4 September 2000, the notice of the decision refusing to grant the protection visa (contained in the letter of 28 August 2000). Accordingly the 28 day period within which he could have applied to the Tribunal for a review expired on 3 October 2000 (not on 2 October 2000 because that was a public holiday: see s 36(2) of the Acts Interpretation Act 1901 (Cth)). 4 Two points are raised in this application for judicial review. Neither was raised before the Tribunal by the applicants. The first is that the conclusion of the Tribunal that the letter (and the notice) could be taken to have been received on 4 September 2000 depended on the operation of reg 5.03 of the Regulations. It was submitted that the regulation was not a valid regulation having regard to the judgment of the Full Court in Singh v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 77. At the time of the judgment of the Full Court, that regulation deemed a document to have been received seven days after the date of the document if the document was sent within seven days of its date. The submission in these proceedings that the regulation was invalid was made even though the regulation has since been amended and, it appears, amended to meet the defect in the regulation identified by the Full Court (that the document could be sent within seven days after its date). The regulation now requires, for there to be deemed receipt, that the document be sent within three days after the date of the document. For reasons which become apparent shortly, it is unnecessary for me to consider this contention raising invalidity though it presently appears to me to be untenable. 5 The second point raised by the applicants concerned a finding of the Tribunal that no address had been given by the applicant under s 53(4) of the Migration Act 1958 (Cth) ("the Act"). Section 53 provides: "(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 or she 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) or (2), the notification is taken to have been received by the applicant even if it was not received. (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. (5) Subject to the regulations, only one person may be specified, under subsection (4), in relation to an applicant at any particular time. (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. (7) Subsection (6) does not prevent the Minister from communicating with the applicant, provided that the person specified under subsection (4) is notified of that communication. (8) If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them." 6 It can be seen that s 53 deals with one aspect of the manner in which the Minister can notify a person of a matter. It deals with the address to which the notification can be sent. This provision is relevant in the present proceedings because both the Act and the Regulations deal with notification of a decision to refuse to grant a visa. Section 412 mandates that an application for the review of, relevantly, a decision to refuse to grant a protection visa must be made (when read with reg 4.31) within 28 days of notification of the decision. Section 66 obliges the Minister to notify the applicant of the refusal to grant a visa in the prescribed way. For present purposes, the prescription of the way the Minister should notify an applicant is found in reg 2.16(1)(c)(i) which provides: "2.16 (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: (a) … (b) … (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; or (ii) if the applicant has not given the Minister an address under that subsection, the last address given to the Minister by the applicant under subsection 53(1) or (2) of the Act; or (d) …". 7 Accordingly, if an applicant has told the Minister that a specified person at a specified place may be given notifications for the applicant about the application, then two things follow. The first is that by operation of s 53(6) the Minister must give notifications to an applicant by giving them to that person at that address though that does not preclude, in addition, direct communication with the applicant: see s 53(7). The second is that the means prescribed by reg 2.16 for notification required by s 66, is despatch to the last address told or given to the Minister under s 53 (4). 8 While the application of s 53(4) had not been raised by the applicants in their submission to the Tribunal, it appears the matter was addressed by the Tribunal so that it could be satisfied that, on any basis, it did not have jurisdiction because the application for review was lodged out of time. In the course of considering this question the Tribunal said that the Department's file records indicate that no address had been given by the applicant under s 53(4). This finding and the conclusion it founded (at least in part) (that the Tribunal had no jurisdiction) is challenged on two bases. The first is that the decision of the Tribunal was based on the existence of a particular fact, and that fact did not exist: see s 476(1)(g) together with s 476(4)(b). The relevant fact was that the Department's file records indicated no address had been given under s 53(4) and that, as a matter of fact, such an address had been given. The second basis of challenge was more obscurely expressed but it appears to be that the Tribunal had erred in law in concluding that the Minister had notified the applicants in the way contemplated by s 53(6). 9 The starting point in considering these issues is whether, as a matter of fact, the applicants told the Minister that a specified person at a specified address may be given notifications for the applicants. In the first form there was a series of questions. The following appears on page 7 of the form completed by the male applicant: "Did your [sic] receive help completing this form? No Yes √ Give details: Person's name ROHNIL CHAND Their address 77 WIGRAM ST HARRIS PARK NSW Postcode 2150 Migration Agent registration number N/A Which persons named in question 1 are represented by this migration agent? All √ None Or give applicant numbers N/A Were you charged a fee for this help? No √ Yes If any of the persons named in question 1 are represented by another migration agent, give details Person's name N/A Their address Postcode Migration agent registration number Which persons (give applicant numbers as shown in question 1) are represented by this migration agent Was a fee charged for this help No Yes To which address do you want notifications/correspondence sent? To my postal address To the address shown at question 12 √ Other Give details: Postcode" (The highlighted sections were completed in hand on the standard form.) 10 It was common ground that the question "Did your [sic] receive help completing this form?" was question 12. Thus the answer to the question "To which address do you want notifications/correspondence sent?" (for convenience, I will refer to this as "the election question") (the affirmative tick against "To the address shown at question 12") directed attention back to the answer to question 12. The critical question is whether the reference back was only to that part of the answer which identified the nominated address or whether it was, additionally, a reference back to the person's name (Ronhil Chand). A related question is that if the answer was a reference back to both the nominated address and the person's name, did it constitute telling the Minister as provided in s 53(4)? That is, did it involve telling the Minister that a specified person at a specified address may be given notifications for the applicant about the application? 11 It was common ground that there is no form or mechanism prescribed by the Act or Regulations for telling the Minister of an address for the purposes of s 53(1) or telling the Minister that a specified person at a specified address may be given notifications for the purposes of s 53(4). I was, however, informed from the bar table that a form exists that might be used by migration agents for the latter purpose but it has no legislative foundation in any direct sense. The question then is whether the election question can be taken, when read with answers to other questions in the first, second and third forms, to be eliciting information from an applicant for the purposes of s 53. 12 To construe the form and understand the effect of answers given, it is necessary to consider a number of matters. One is what was meant by the expression "To my postal address" in the last question in the quoted extract from the first form. In the second form an applicant must answer a question about their current residential address in Australia. The question stated that "this must be the address where you are living" and went on to say that "a Post Office box number is not acceptable as a residential address". The applicants answered, in this matter, this question by setting out the nominated address. In the third form an applicant (in the position of the male applicant in the present case) must answer a question setting out his or her Postal Address and the question contained the following notation "(if same as residential address in Form 866, write "Same as residential")". The male applicant answered, in this matter, this question by writing "SAME AS RESIDENTIAL". 13 A visa applicant is obliged by s 53(1) to tell the Minister the address at which he or she intends to live. That is achieved by the question in the second form referred to in the preceding paragraph. The reference to "postal address" in the election question picks up the answers in the second form (concerning the current residential address) and the third form (concerning a postal address). If, as happened here, the identified postal address was the same as the residential address and an applicant had signified notifications could be sent to his or her postal address when answering the election question, the applicant would have done what is required by s 53(1) and, though in a sense unnecessarily, signified that the scheme in s 53(1) and (3) was acceptable. That is, the applicant could be sent or given notifications at his or her residential address. 14 What then, is the purpose of providing in the election question the identification of an address that might have been given in answer to question 12? Nowhere else in the first, second or third form is there a provision, apart from the election question, allowing an applicant to tell the Minister of a specified person and a specified address in the way contemplated by s 53(3). An affirmative answer is given to question 12 and a name and address identified when the applicant has received help in completing the first form. It is likely that the invitation in the election question to have notifications and correspondence sent to the address of the person who gave help was intended to be conformable with the scheme in s 53. Unless the address of the person giving help was the same as the residential address of the applicant (as is the case in the present matter), the election question (to the extent that it would take you back to the answer to question 12) could not be inviting identification of an address which is not the residential address unless it is an address of the type contemplated in s 53(4). It cannot be assumed, in my opinion, that the form was drafted on an assumption that the address of the person giving help was the residential address of the applicant. Indeed, in the ordinary case, they could be expected be different addresses. 15 These matters strongly suggest that the election question was intended to enable an applicant to tell the Minister either an address for the purposes of s 53(1) (indirectly) or an address for the purposes of s 53(4) (directly). The latter would occur if the applicant signified that the address for notifications and correspondence was the address of the helper set out in the answer to question 12. That address becomes the specified address. It follows, in my opinion, that, in addition, the form was drafted on the basis that the named helper was also a specified person for the purposes of s 53(4). This appears to be a sensible construction of the first form in the sense that a person helping an applicant to complete the form (particularly if that person was a migration agent) might logically and reasonably be a person an applicant might specify to receive notifications and correspondence for the purposes of s 53(4). 16 It may be accepted that this construction of the forms might have an anomalous result. It would arise if the identified postal address in the third form was not the identified residential address in the second form. An applicant might indicate when answering the election question that notifications and correspondence could be sent to his or her postal address. If answered this way the applicant might be misled into believing that effective notifications from the Minister would only be sent to the postal address, whereas the Minister would presumably send notifications to the residential address to enliven s 53(3). However this anomaly does not alter, in my opinion, the apparent purpose for which the election question is asked. It was intended to enable an applicant to provide an answer on which s 53 would operate either directly or indirectly. Accordingly the male applicant in the present matter did specify both a person and an address for the purposes of s 53(4) (which became effectively the address for the female applicant as well: see s 53(8)). 17 It follows that the Tribunal based its decision on the existence of a fact when the fact did not exist. That fact was plainly critical to the conclusion of the Tribunal that it lacked jurisdiction. Moreover the reference to "the last address" in reg 2.16(1)(c)(i) should be taken to be a reference to the specified person and the specified address. That is, to give effective notice in the way contemplated by reg 2.16(1)(c)(i), it is necessary for the Minister to do that which is required by s 53(6). The Minister must notify an applicant of the decision to, relevantly, refuse a visa by sending the notice of the decision to (or leaving the notice at) the specified address but also addressed to the specified person. This construction of reg 2.16 is consistent with the views of Gyles J in Guo Heng Li v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 219 at par 41. It is a construction of the regulation that creates a consistent statutory scheme. If the expression "the last address" was read literally it would mean that the regulation was authorising notification that was effective but which was at odds with the general provision concerning notification in s 53. There is no apparent reason why the framers of the regulation would have intended this result. 18 In the present case the letter was not addressed to the specified person (Rohnil Chand). Accordingly the sending of the letter of 28 August 2000 did not constitute notification of the decision to refuse the visa for the purposes of s 412. At the earliest, the applicants were notified of the decision when they were arrested. Their application for review by the Tribunal was lodged in time. 19 I propose to order that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal with a direction that it has jurisdiction. The applicants sought additional orders concerning their detention. If agreement cannot be reached about those matters then the parties can exercise the liberty to apply which I will provide for in the orders I make. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.