Dwyer v Huxtable

The applicant and Mr Tabet had together purchased a shop at 140-142 Port Road, Alberton, and moved from the Campbelltown address to a house attached to the shop premises on about 17 October 1996. The applicant did not notify the respondent of her change of address. She did not in fact receive the letter dated 5 December 1996 notifying her of the decision to refuse the application until 10 January 1997 when it was given to her by Mr Tabet. She then on 13 January 1997 applied for the visa refusal decision to be internally reviewed under the Act, and paid the fee prescribed. The reason for the delay in delivery of the registered mail is also clear. On about 27 October 1996, Mr Tabet attended at the Campbelltown post office and arranged for any mail directed to himself or to the applicant to be redirected to the address at 140-142 Port Road, Alberton. He paid the fee. Redirection of mail seemed to routinely occur. The critical letter, for reasons which are unexplained but on the evidence clearly the responsibility of Australia Post, was sent to the Newton Post Office where it was received on 9 December 1996 and held there for no apparent reason for about a month, then sent to Campbelltown Post Office where it was received on 8 January 1997 and then properly redirected as arranged. Mr Tabet was permitted to accept and sign for the letter on 9 January 1997. He then showed it to the applicant. The respondent, having first accepted the application for review of the visa refusal decision, on 16 January 1997 rejected it as having been received outside the twenty eight day time limit prescribed, being twenty eight days after the date that she was deemed to have received the letter of 5 December 1996. That period expired on 9 January 1997. The issues on this application The respondent appeared in this matter on 18 February 1997. The first directions hearing took place on 24 February 1997, when I gave leave to the applicant within fourteen days to amend her application as she might be advised, including any amendment in the light of the respondent's informal notice of a proposed objection to competency, and I gave leave to the respondent to file and serve any notice of objection to competency either within seven days of receipt of any amended application or, if no amended application was filed and served, within twenty one days. No amended application was filed, so that time expired on 17 March 1997. On 17 March 1997 the respondent filed and served a notice of objection to competency objecting to the jurisdiction of the Court to hear and determine the application on the following grounds: 1. the visa refusal decision was internally reviewable, and so not judicially reviewable: s475(2)(b) of the Act, and 2. the application with respect to the review refusal decision was incompetent because the application for internal review of the visa refusal decision was not made within the prescribed period: ss53, 66(1) and 339(1)(b)(i) of the Act and regs4.02(2)(a), 2.16(1)(c) and 5.03(1)(a) of the Migration Regulations ("the regulations"). I fixed a hearing date for that notice of objection to competency. Perhaps perceiving that the notice of objection to competency was not necessarily the appropriate vehicle to determine both the issues identified by it, the respondent by notice of motion dated 21 March 1997 applied to dismiss the application on the grounds that the review refusal decision of 16 January 1997, although itself judicially reviewable under s475(1)(c) of the Act, could not be sustained in any event. That notice of motion thus invoked O20 r2 of the Federal Court Rules ("the Rules"). By agreement it was heard at the same time. Finally, the applicant by notice of objection to competency dated 21 March 1997 objected to the jurisdiction of the Court to hear and determine the respondent's notice of objection to competency of 17 March 1997 on the ground that it was itself out of time, not having been filed and served within fourteen days after service of the application as required by O54B r3 of the Rules. Affidavit evidence asserted that the application was served on 3 February 1997, but it is not clear that it was then a sealed copy of the application. It is acknowledged that a sealed copy of the application was served on 12 February 1997. The procedure adopted reflects a similar process, in more complex circumstances, in Bryant v Commonwealth Bank of Australia (1994) 123 ALR 642. The applicant's objection to competency I do not accede to this objection for a number of reasons, all of which are founded upon the sensible and pragmatic approach to similar issues illustrated by the decision of Northrop J in Dwyer v Huxtable (1989) 18 ALD 252 at 253. It would be inappropriate to allow such a procedure to result in the Court declining to rule upon whether it has jurisdiction to consider a particular issue, and perhaps even thereby proceeding to consider that issue when it did not have jurisdiction to do so. Rules such as O54B r3, to the extent that they require prompt identification of issues as to the competency of a particular application, serve an obviously useful purpose. But where the issue as to competency is as to the jurisdiction of the Court to hear and entertain a particular application at all, the failure to comply with them precisely cannot create jurisdiction where it does not exist. Thus, if it were necessary to do so, I would extend the time within which the respondent could file and serve the objection to competency to 17 March 1997, exercising the power available to me under O3 r3 of the Rules. Any delay is short, and no prejudice to the applicant is put forward: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257. There is an explanation for the delay (if delay there be) in the directions given on 24 February 1997, as it was then contemplated that the applicant might wish to amend her application to express it in a way which would or might meet in some way the declared intent of the respondent to object to the competency of the application in its then form: cf. Bishop v R (1982) 58 FLR 233 at 235 per Deane J. However, in my view, the necessary extension to 17 March 1997 was granted, without opposition, for that very reason by the directions given on 24 February 1997. In addition, as indicated, I am not presently satisfied that the sealed copy of the application was served on 3 February 1997. That is required: O7 r1(2). It may well have been served at that time, rather than on 12 February 1997 as the respondent acknowledges. Further evidence might clarify that issue, but for reasons given above, I do not think it matters. The power to extend time under O3 r3(2) may be exercised after the time otherwise fixed by the Rules has expired. The circumstances are such that the extension granted on 24 February 1997 would have been given whether proper service was effected on 3 or 12 February 1997. Finally, I note that it is not suggested that the respondent's notice of motion is itself incompetent or out of time, or that its timing is relevant in the particular circumstances to the manner of its disposition. It raises the review refusal decision, that is the decision about which the Court's jurisdiction is not in issue, so that question can be determined by that vehicle in any event. Thus, there is no real gain to the applicant by its notice of objection to competency in relation to that decision. The parties were in fact content for the status of the application in respect of the review refusal decision to be determined on that motion. The visa refusal decision In my view, it is plain that the Court does not have the jurisdiction to review the visa refusal decision. Part 8 of the Act expressly provides those decisions which are reviewable by the Court. Section 486 of the Act gives the Court extensive jurisdiction with respect to "judicially- reviewable decisions", and s485(1) makes it clear that its jurisdiction is limited only to jurisdiction given by that part of the Act or by s44 of the Judiciary Act 1903. It was not suggested that s44 of the Judiciary Act 1903 is relevant for present purposes. Those decisions which are judicially reviewable are set out in s475 which relevantly provides: "(1)Subject to subsection (2), the following decisions are judicially-reviewable decisions: (a) decisions of the Immigration Review Tribunal; (b) decisions of the Refugee Review Tribunal; (c) other decisions made under this Act, or the regulations, relating to visas.

(2)The following decisions are not judicially-reviewable decisions: . . . (b) an internally-reviewable decision; . . .". The decision in question falls under s475(1)(c) as a decision made under the Act, but will not be a judicially reviewable decision if it is an internally reviewable decision. Part 5 of the Act deals with review of decisions. Within that Part, s338 provides that, subject to s338(2), Part 5 reviewable decisions are internally reviewable decisions. There are no material exceptions in subs(2) for present purposes. Section 337 relevantly defines a Part 5 reviewable decision to mean a decision to refuse to grant a non-citizen a visa where the visa could be granted whilst that person is in the migration zone and whilst that person applied for the visa while in the migration zone. The applicant is a non-citizen as defined in s5 of the Act, as she is not an Australian citizen, and the visa she sought was applied for whilst she was within Australia and could have been granted whilst she was in this country, that for present purposes being the migration zone: s5 of the Act. In my view it is clear therefore that the visa refusal decision was an internally reviewable decision, and thus not one with respect to which the Court presently has jurisdiction. I uphold the objection to competency of the respondent in relation to the visa refusal decision.

The review refusal decision It is accepted that this decision is judicially reviewable, under s475(1)(c) and not being within any of the exceptions in s475(2) of the Act. What is contended is that the application in respect of this decision should be summarily dismissed because it is untenable. Accordingly, in approaching this aspect of the matter, I am guided by authorities such as General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Walton v Gardiner (1993) 177 CLR 378. The claim must be so obviously untenable that it cannot possibly succeed, and I should proceed with great caution before coming to such a conclusion. In the present circumstances, I have the benefit of knowing that there is no issue as to the relevant facts. The respondent's application is made upon the basis of a statutory provision which is said to have the effect that the time within which the applicant could make an application for review expired before the applicant knew of the decision which she sought to have reviewed. It is not a case of uncertainty about what happened. Australia Post failed in a timely manner to process a mail redirection order. Moreover, once the decision actually came to the applicant's notice, she proceeded promptly, in fact within three days, to apply for that review. If there is any scope for discretionary considerations, they clearly favour the applicant. If there were scope to extend time to institute the application for review, justice would demand that an extension of time be granted. Ultimately, on the respondent's case, the application was only four days out of time in any event. However, it is the respondent's submission that there is no relevant discretion, nor any extension of time power, and that the relevant provisions of the Act and of the regulations are beyond doubt. The application for the visa by the applicant was made under Part 2 Division 3 Subdivision AA of the Act. Section 47(1) obliged the respondent to consider her application, and s65 empowered the respondent to refuse it. Section 66(1) of the Act obliged the respondent to notify the applicant of the decision "in the prescribed way", including notifying her of the matters specified in subs(2). I refer below to the relevant prescription in reg2.16 of the regulations. It is the notification which is the critical issue on this application. The respondent's decision to refuse to grant the applicant a visa is a Part 5 reviewable decision, as defined in s337 of the Act. Under s338, it was internally reviewable. Relevantly, s339(1) provides: "An application for review of an internally-reviewable decision must: (a) . . . (b) be given to the Secretary ... within the prescribed period, being a period ending not later than:

(i) if the decision is covered by paragraph (a) or (b) of the definition of Part 5 reviewable decision - 28 days after the notification of the decision; ...". The decision in question, for reasons expressed above, was a decision covered by par(a) of the definition of Part 5 reviewable decision. There is no power to extend that period. Thus, the time for any application for review under s339(1) was the prescribed period up to twenty eight days after "the notification" of the decision. Regulation 4.02 of the regulations contains that prescription. The respondent's short point is that the applicant was notified of the visa refusal decision, as required by s66(1) of the Act, by letter dated 5 December 1996 posted by registered mail on 6 December 1996 to the applicant at the address given in her application for the visa. That address was the one provided by the applicant to the respondent pursuant to s53(1) of the Act. Despite her change of address, she did not inform the respondent of her new address as required by s53(2) of the Act. Had she done so, the present problem would not have arisen. Section 53(3) provides: "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." That general provision does not specifically refer to any particular statutory obligation to notify, but on its terms is sufficiently general to include a notification under s66(1) of the Act. Nor does it say when the notification is taken to have been received. However, certain of the regulations refer to those matters. Regulation 2.16(1) relevantly provides: "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, the last address given to the Minister by the applicant under section 53 of the Act (which deals with what an application must tell the Minister); (d) ...". Regulation 4.02(2)(a) prescribes the period referred to in s339(1)(b)(i) of the Act in the following terms: "For those purposes [the purposes of paragraph 339(1)(b) of the Act], the period for giving an application to the Secretary is: (a) in the case of an internally-reviewable decision of a kind mentioned in paragraph (a) of the definition of 'Part 5 reviewable decision' in section 337 of the Act - 28 days after the notification of the internally reviewable decision;". Regulation 5.03 relevantly provides: "(1)For the purposes of these Regulations, and subject to specific provision elsewhere in these Regulations, a document that is sent by the Minister or a Tribunal is taken to be received: (a) if the document is sent from a place in Australia to an address in Australia - 7 days after the date of the document; ... (2)Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document." There is no other relevant specific provision elsewhere in the regulations. Thus, it is submitted, the decision was notified by letter dated 5 December 1996 sent on 6 December 1996, within the period permitted by reg5.03(2), to the address given by the applicant under s53(1) of the Act. The respondent therefore duly notified the applicant of the visa refusal decision. That notification was taken to be received on 12 December 1996, pursuant to reg5.03(1). The time to seek internal review of the decision therefore expired twenty eight days after 12 December 1996, namely 9 January 1997. The application made on 13 January 1997 was made too late, and the review refusal decision of 16 January 1997 to that effect is - irrespective of the merits of that application - simply unsustainable. That such provisions can potentially work hardship is evident on the facts of this matter, if the respondent's submission is correct.

The question whether those, or similar, provisions do have the effect contended for has been the subject of judicial consideration. In Coung Van Nguyen v Gerkens (Ryan J, 8 October 1996, unreported), the Court was asked to consider a decision of the Refugee Review Tribunal ("the RRT") that an application for review made to it concerning a decision refusing a protection visa was made too late. The application to the RRT was posted well within the twenty eight day period from notification of the decision, but for unexplained reasons was received by the RRT only some twenty days later, and outside that period. The issue addressed by Ryan J relevant to the present matter was whether the time limit prescribed by s166BA(1)(b) of the Act and reg43E of the Migration (Review) (1993) Regulations was mandatory. I am not able to discern any relevant difference between those provisions and the provisions of s339(1)(b) of the Act and reg4.02(2)(a) of the regulations. His Honour, in concluding that these time provisions were mandatory, followed the decision of Neaves J in Ren v Immigration Review Tribunal (1991) 33 FCR 261 and observed (at 9-10): "... in each case the right to review the decision complained of is a creature of statute. Had it been intended to confer on the Court a discretion to extend the time within which to appeal from a decision of the Tribunal, a drafting formula was readily at hand, as Neaves J noted in Ren in the Administrative Decisions (Judicial Review) Act for reproduction in the Act or Regulations. If a statute conditions a right upon compliance with some time limit or other mandatory requirement, a Court cannot remove that fetter by pointing to a policy consideration which it perceives would be better effectuated were the mandatory requirement not imposed. ... Although in a different context "must" may not attract that construction, I consider that by stipulating in s. 166BA of the Act that an application for review must be given to the Tribunal within the prescribed period, the legislature has obviously chosen to give paramount effect to the policy that it should be known within a certain, comparatively short, time whether an application for review is to be brought in respect of a particular decision in relation to a refugee." By parity of reasoning, as well as for reasons of comity, I follow that decision. The precise matter in issue arose in Seci Dawai and Anor v Minister for Immigration and Multicultural Affairs (Moore J, 3 February 1997, unreported). There the respondent had refused applications for protection visas, and notified the applicants by letter sent by certified mail to the address advised under s53(1) of the Act. The letter was not collected by the applicants until much later, and they then applied to the RRT for a review of the refusal decision. As in this matter the time of notification of the refusal decision was critical. So far as I can see, the only practical point of distinction from the present matter is that the particular decision was not internally reviewable because it was reviewable by the RRT: s338(2)(e) and s411(1)(c) of the Act. However, the relevant expression of the time within which the review application to the RRT could be made in s412(1)(b) and reg4.31(2) is effectively the same as in s339(1)(b)(i) and reg4.02(2), and (as here) the contention of the respondent focussed on s66(1)(c), reg2.16 and reg5.03. Moore J observed (at 6-7):

"Sections 66 and 504 authorise the making of a regulation that identifies a means of notification that must be used. Section 66 is not in terms that indicate any limits exist on the means that might be prescribed and, in particular, that indicate it should be a means which would parallel the provisions of s 55. That is, a way of notifying an applicant involving the sending or leaving of a notification at the address provided in the way required by s 55. However if, as is reflected in reg 2.16, such a means is the prescribed way, there is no reason apparent to me why the provisions of s 55(3) would not then apply to notification in accordance with the prescribed way. Thus the adoption in reg 2.16(1)(c) of a method of notification involving the sending or leaving of the notification at the address provided in conformity with s 55 results, by operation of s 55(3), in the imputed receipt of the notification by the applicant, whether or not it is in fact received." (I think the references to s55 are intended to be references to s53). His Honour then considered whether reg5.03 operated on the sending of a notification in the way prescribed by reg2.16(1)(c), so that taking the notification "to be received" at a certain time is the taking of it to be received by the addressee, or only at the address itself. He reached the view that the effect of s53(3) of the Act was to require the receipt at the address to be the receipt by an applicant at the address. Thus he concluded (at 9): "In my opinion, the combined effect of s 55(3), reg 2.16 and reg 5.03 is that compliance with reg 2.16(1)(c) results in deemed notification of the decision seven days after the date of the document notifying the applicant of the decision. It is that time that provides the reference point for the commencement of the limitation period provided for in s 412(1)(b) and prescribed by regulation 4.31." I can see no relevant point of distinction between that case and the present. I add that Moore J in reaching the conclusion that the application should be dismissed, recognised that in some cases that interpretation might produce manifestly unjust results. However, as he pointed out, if that be what the Parliament intended, it is not for the Court to substitute its view of what the legislation might or should provide for the clearly expressed view of the Parliament. The same conclusion was reached by Tamberlin J in Santos v Minister for Immigration & Multicultural Affairs (8 May 1997, unreported). That case also involved a challenge to a decision of the RRT that it had no jurisdiction to review a decision refusing an application for a protection visa, as the application was made outside twenty eight days from the date when the applicant, by reason of reg5.03(1)(a) of the regulations, was deemed to have received notice of the decision. The letter giving notice of the decision was duly despatched, addressed to the applicant at the relevant address given under s53(1) but was returned to the respondent marked that the applicant was unknown at that address. That was held, nevertheless, to be the notification from which the relevant twenty eight day period ran. Tamberlin J's decision also was based upon the operation of ss66(1) and 53 and regs2.16 and 5.03 of the regulations. His Honour observed (at 7): "In my view, s 53 is designed to prevent disputes as to non-receipt of notifications. Once the condition precedent of sending the notice to the specified address is satisfied then the notification is taken to have been received. The subsection is not expressed to be subject to contrary proof. It is conclusive in the interest of certainty as to notifications and expiry dates for review applications."

In my view, the conclusions reached by Moore J and Tamberlin J are, for the reasons each gave, correct. I adopt those reasons. It is significant that the relevant limitation period is prescribed by reg4.02, as reg5.03 operates on its terms "for the purposes of these Regulations". It is not, therefore, as submitted by counsel for the applicant, a question of the terms of s339(1) taking precedence over the terms of reg5.03; they are entirely consistent in their operation. Nor is it correct that reg5.03 is inconsistent with s339(1), as was contended, and so beyond the regulation power of s504 of the Act. The time prescribed by reg4.02, as contemplated by s339(1), runs from "the notification of the decision". Notification of the decision is required by s66(1) to be given in the prescribed way, and reg2.16 represents that prescription. Section 53(3) provides that such notification to the address provided under s53(1) or (2) is "taken to have been received" even if it was not received, and reg5.03 prescribes for the purposes of the regulations (including reg4.02) when that deemed receipt is taken to have occurred. There is no inconsistency between the Act and the regulations in that bundle of provisions; rather, they are entirely complementary. Accordingly, although it would be appropriate to strain to adopt an interpretation of the relevant provisions which avoids the sort of hardship which the present application amply demonstrates, I do not think there is room for doubt. Both the clear words of the relevant provisions, and other decisions, lead me to the view that this is a proper matter to exercise the power available under O20 r2 of the Rules. I do not think that the decisions of Moore J in Van Chuong Nguyen v Minister for Immigration and Ethnic Affairs (31 July 1996, unreported) and of North J in Kamkar v Minister for Immigration and Multicultural Affairs (9 December 1996, unreported) impinge upon that conclusion. In both cases, the application was to the Court to review a decision of the RRT, made under s476 of the Act. Section 478(1) of the Act requires that the application be lodged within twenty eight days of the applicant being notified of the decision of the RRT. The obligation on the RRT under s430(2) of the Act was to "give" the applicant a copy of its decision and reasons. Regulation 4.40(1) of the regulations was to the effect that a notice "given" by the RRT is "taken to be duly given" by posting it to the last address for service provided by the applicant. It does not specify the time such notice is given, as distinct from the manner of its giving. In each case, that procedure was followed but the notice did not come to the actual knowledge of the applicant until considerably later, although the letter reached its destination routinely. In each it was held that the twenty eight day period specified in s478(1) of the Act commenced only when the applicant had actual knowledge of the RRT decision and its reasons. However, there are significant points of distinction between those two cases and the issue now under consideration. Regulation 5.03 did not, on its face, apply because the time limitation was provided in the Act and not the regulations. There is no correspondence of language between s430(2) and s478(1); one uses the term "given" and the other the term "notified". Indeed, both Moore J and North J focussed on that point of distinction, remarking upon the consistency of expression in s66(1) and reg2.16 relevant to the present matter and Moore J (at 9) explicitly indicated that in a case such as the present he would reach a different view. As appears above, he did so in Dawai. Although the routes by which each reached the conclusion were somewhat different, the reasoning does not cast doubt on the conclusion which I have reached. Conclusion Accordingly, I have reached the view that 1) the visa refusal decision is one which the Court has no jurisdiction to entertain, and 2) the review refusal decision is one which was properly made, on the basis that the application for internal review of the visa refusal decision was made more than twenty eight days after the notification of the visa refusal decision, and further the matter is so clear that it is appropriate to exercise the power available under O20 r2 of the Rules to now dismiss the application in respect of that decision.

In my view, therefore, this application should be dismissed. I do so recognising the hardship to the applicant which the construction of the relevant provisions produces in the particular circumstances, and especially so where it is common ground that it was the error of Australia Post which, at least to some extent, has caused that hardship. The consequence could have been avoided had the applicant complied with s53(2) of the Act. It is, however, a matter for the legislature as to whether in the light of this consequence in the circumstances, or those circumstances identified in Dawai (above) and in Santos (above), some provision is warranted to permit the entertainment of a review application where it is clear that the failure to receive actual notification of a decision is not the responsibility of the applicant, and there is no other reason not to entertain the application for review. The present circumstances lead me to the view that, in this matter, there should be no order for costs. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Mansfield. Associate Dated:

Counsel for the Applicant : Mr M Clisby Solicitors for the Applicant : Gilbert Santini Counsel for the Respondent : Ms S Maharaj with Ms J Nunan Solicitors for the Respondent : Australian Government Solicitor Hearing Date : 26 March 1997