"H" v Minister for Immigration and Multicultural Affairs

THE COURT: 1 This is yet another case where the time within which a putative refugee must bring his claim before the Refugee Review Tribunal has caused difficulty. On this occasion, however, the applicable rules will not bring about an unjust result. 2 To explain, we first need to outline the relevant statutory and regulatory requirements. An application to review a decision to refuse a protection visa must be given to the tribunal "within the period prescribed": s 412(1)(b) Migration Act 1958 (Cth) ("the Act"). The prescription is in reg 4.31 of the Migration Regulations 1994 (Cth) ("the Regulations") which relevantly provides: "(1) For the purposes of paragraph 412(1)(b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal. (2) A period mentioned in subregulation (1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of: (a) in the case of an application given to the Tribunal by or for an applicant in immigration detention on that day - 7 working days (beginning with the first working day that occurs on or after that day); or (b) in any other case - 28 days." 3 It will be observed that the timetable begins with the notification of the decision. How is this done? Section 66(1) requires the Minister to notify the applicant of the decision in the prescribed way. Before dealing with this prescription, it is necessary to note s 53 which is concerned with communications between the Minister and a visa applicant. Section 53(4) provides that an applicant may tell the Minister that a specified person at a specified address may be given notifications for the applicant about the application. If the applicant avails himself of this right, s 53(6) requires the Minister to give notifications to the applicant by giving them to the specified person at the specified address, and notification so given is taken to have been received by the applicant. Turning now to the regulations, the prescribed way in which notification of a decision is to be given (that is the method for giving the notice) is dealt with by regs 2.16 and 5.02. Regulation 2.16 provides that if the Minister's decision is to refuse a visa, notice may be given: "(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 to 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) by handing a notice of the decision to the applicant or a person specified by the applicant under subsection 53(4) of the Act." Regulation 5.02 is concerned with service of a document (which is defined to include a notification) when the applicant is in immigration detention. It provides that "a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf." 4 We note in passing that there is a potential for inconsistency between s 53(6) and reg 2.16. Section 53(6) ("the Minister must") imposes an obligation on the Minister to give notifications to a specified person at the specified address. On one reading, reg 2.16 purports to convert this statutory obligation into a discretionary power. It is not necessary for us to determine whether this is what reg 2.16 actually purports to do and, if it does, whether the regulation is to that extent beyond power. 5 Finally there is reg 5.03 which specifies when a document is taken to be received, if it is not personally given to the applicant. So far as is relevant, reg 5.03 provides: "(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." We see that in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 a majority of the Full Court held that "reg 5.03 is invalid in so far as it purports to operate in respect of the time limits imposed by reg 4.31 pursuant to s 412 of the Act". The Full Court took the view that the regulation unreasonably or arbitrarily undermined the period for applying for review established by reg 4.31. In this case reg 5.03 will not impinge upon reg 4.31 in that way, so there is no reason to read down reg 5.03. 6 Now we can go to the facts. In his application for a protection visa, the appellant specified a person at a specified address to whom notifications were to be sent. The person was Ms Chantal Bosnan of Messrs Craddock Murray Neumann, a migration agent, and the address was 255 Castlereagh Street, Sydney, NSW, 2000. The Minister accepts that this amounted to a specification under s 53(4) for the purposes of s 53(6). 7 The delegate's decision to refuse the appellant a protection visa was made on 26 October 2000. On that day the delegate forwarded by facsimile transmission to both the Immigration Reception Centre where the appellant was being detained and to the migration agent at her specified address, notification of the decision. The documents were dated 26 October. In due course the notification sent to the Immigration Detention Centre was given to the appellant. It is not clear whether this happened on 26 October or on the following day. Whatever be the case, the Minister accepts the inevitable inference that notification of the decision was received by the appellant's migration agent before it was handed to the appellant. 8 When one applies the regulations to the uncontested facts, the result of notifying the migration agent of the Minister's decision is as follows. As it was not necessary to notify the applicant personally, because notification was to be given to his agent under s 53(6) and reg 5.02, the Minister thus discharged the statutory obligation imposed by s 66(1). However, according to reg 5.03 the date on which the facsimile transmission was actually sent to the migration agent is not the date on which it is taken to have been received. That date is "seven days after the date of the document", which, as it happens, is 26 October 2000. The date on which that document is taken to have been received is 2 November. Turning now to reg 4.31, the appellant had seven working days after having being notified of an adverse decision (that is on the date on which he is deemed to have received the notification) to give notice of his application for review to the tribunal, that date being 13 November. He filed his application on 8 November. 9 When the case came on for hearing before the tribunal, it decided that it could not determine the application, taking the view that it had been commenced out of time. The tribunal acted on the assumption that the only relevant dates were, first, the day on which the appellant was personally handed notification of the delegate's decision (26 or 27 October) and, second, the date on which the application for review was lodged (8 November). If these were the relevant dates, the tribunal correctly declined jurisdiction. But the tribunal fell into error because it paid no regard to the notification sent to the migration agent. On the basis of this notification, there are two alternative bases for concluding that the application for review was within time. The first is that the notification to the migration agent was the only relevant notification of the decision, so that the application for review could be lodged at any time before 14 November. This approach assumes that once the Minister first notified the appellant of the decision, that exhausted the Minister's obligation under s 66. If that be correct, any further "notifications" (for example, by personally serving the appellant with a copy of the decision), would not be notifications under the statute and would have no legal consequence. The second basis for holding the application to be within time assumes that the second notification cannot be ignored, and that it brought into operation a second timetable within which the applicant could file a notice of review. In that event the applicant has been given two inconsistent timetables within which to make application for review and, in the absence of any statutory basis for giving one priority over the other, the appellant was entitled to choose the timetable that best suited him. That is what occurred in this case, albeit the appellant did not know he was making a choice. 10 The trial judge reached a different conclusion. He was not asked to, and therefore did not, consider the effect of the notification to the migration agent. Indeed, the issue only came up during the course of submissions on the appeal. When it did, counsel for the Minister asked for the matter to be stood down so that she could obtain instructions, after which, counsel advised the Court that opposition to the appeal had been withdrawn. Being satisfied that the appeal should be allowed for the reasons we have already expressed, the Court ordered that the appeal be allowed and that the matter be returned to the tribunal for determination. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.