Kumar v Minister for Immigration & Multicultural Affairs

"A notice or statement to be given to an applicant in relation to a decision of the Tribunal is to be taken to be duly given if the notice or statement is given: (a) by posting it to the last address for service provided by the applicant in connection with his or her application for review; …"

13 I am satisfied that the letter of 27 January 1999 did bear a correct prepaid postage: see reg 4.40(3). In my view, reg 4.40 describes the means by which that written notice under s 430 may be given. Of itself, it does not purport to prescribe when that notice is taken to have been received, if s 478(1)(b) permits of notification other than actual notification. 14 Regulation 5.03 provides:

"(1A)This regulation applies to a document sent by the Minister, a Tribunal or review officer to a person in that person's capacity as: (a) an applicant, of any kind, under the Act or these regulations; or … (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; … (2) Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document."

15 The applicant contends that, the notice having been duly given by the Tribunal by posting it to the last address for service provided by the applicant in connection with his application for review, reg 5.03(1)(a) provides that it is taken to have been received by the applicant at the time at which it is taken to be received at the address to which the document is sent, and because it was sent to a place in Australia, is taken to be received at the address for service seven days after the date of the letter, that is 3 February 1999. I observe that that would be so even if the letter were posted on 3 February 1999 (still within seven days after the date of the document), and as in this case if it were sent from Melbourne to Renmark, notwithstanding that there is obviously some time which would expire between the posting of the letter in Melbourne on 3 February 1999 and its receipt at a postal or residential address in Renmark. The regulation seems to have the effect, if the applicant is right, that the twenty-eight day period would commence to run before the letter was received in the ordinary course of mail. However, it has not been submitted that that circumstance causes the regulation to be invalid, even though in a practical sense it may provide for a shorter period than twenty-eight days. 16 Regulation 5.03 was amended by the Migration Regulations (Amendment) Statutory Rules 1997, No 109 (Cth) commencing on 1 July 1997. It was amended by inserting subreg (1A) and by substituting the existing introductory words in subreg (1) for the words previously appearing. They were in the following terms:

"(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: …" 17 Regulation 5.03(1A) and (1) was further amended by the Migration Regulations (Amendment) Statutory Rules 1997, No 304 but not in any way significant to the present issue. 18 The proper operation of s 478(1)(b) has been considered by the Court in a number of decisions. 19 The most recent observation about those decisions is in the reasons for judgment of Burchett J in Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 161 ALR 612 at 618-619. His Honour said:

"There has been a long line of cases at first instance concerning the relationship between reg 5.03 and s 478, which requires an application to the Federal Court to review a decision under s 476 or s 477 to be lodged "within 28 days of the applicant being notified of the decision": Nguyen v Minister for Immigration and Ethic Affairs (1996) 68 FCR 437; 149 ALR 119 (Moore J); Kamkar v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 424 (North J); Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386; 151 ALR 717 (Merkel J); Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 at 456 (Mansfield J); Shrestha v Minister for Immigration and Multicultural Affairs (13 October 1997, unreported) at [9] (Sackville J); Alkaab v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 375 (Tamberlin J). The earlier cases in this series held that reg 5.03 did not apply to the notification referred to in s 478, but the then form of the regulation, since amended, provided a particular ground for so holding that is no longer available. In Alkaab, which concerned the regulation in its present form, Tamberlin J (at 380) treated the question whether actual, not deemed, notification was required as an open one. Sackville J noted in Shrestha, and Mansfield J's decision in Tabet also shows, that a line of first instance decisions on s 412 (construed in the light of s 53) is clearly distinguishable. Of course, as Tamberlin J said in Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 at 321 (in his judgment in a Full Court matter where it was held that notification of a decision under s 166BA(1)(b) did not require translation into a foreign language understood by the recipient), "[w]hat amounts to 'notice' in any particular case must depend on the legislative framework in which the requirement is found". There has, however, been a decision at first instance to which, in Alkaab, Tamberlin J does not appear to have been referred - Susiatin v Minister for Immigration and Multicultural Affairs (Beaumont J, 5 June 1998, unreported) - where reg 5.03 was held to operate with respect to s 478. There is no appellate decision to that effect, nor any decision which would bind this court with respect to s 426. Furthermore, in Susiatin, the court's attention was not drawn, so far as appears, to the detailed and convincing reasoning in Wang. That decision did not turn on any question affected by the amendment to reg 5.03, but on the terms of the statutory requirement in s 478, which Merkel J held (at 390, 396-7) to demand "actual notification"." 20 Sook Rye Son (above) concerned the obligation of the Tribunal under s 426(1)(b) of the Act to notify an applicant before the Tribunal of the entitlement to appear to give evidence and to give the Tribunal written notice that the applicant wishes the Tribunal to obtain oral evidence from other persons. The other members of the Full Court did not need to decide whether s 426 requires actual notification, rather than notification by service of a document which, by operation of the regulations, is deemed to be received within a specified time of its dispatch: see per Moore J at 624 and per Katz J at 630. However, the views of Burchett J referred to above clearly concern the question of what will constitute notification for the purposes of s 478(1)(b) of the Act. 21 As Burchett J noted, in Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574, Beaumont J addressed the very question now before the Court. It concerned reg 5.03 in its current amended form. His Honour, after referring to Nguyen and to Long Guan Chun v Minister for Immigration Local Government and Ethnic Affairs (1996) 65 FCR 164 said that:

"However, s 478(1)(b) does not stand alone. It must be read in conjunction with the regulations, as part of the general legislative plan in this area. I should note in this connection, that it is not suggested nor, on my present understanding at least, could it be suggested, that reg 5.03 is beyond power."

22 In that regard, I note in particular ss 504(1) and (3) which relevantly provide: "(1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations: (a) … … (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; (f) … (2) … (3) 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 Regulation 5.03 expressly operates "for the purposes of the Act …". In Susiatin (above) Beaumont J found that the words "is taken to be received at the address" must mean "deemed to have been received by the applicant at the time". He could not see any material differences in the context between "receipt" of the document and being notified of the decision. He said, at 581: "Whatever literal differences there might be in the language, I am of the view that if the Act and the regulations, viewed (as they should be) as a single legislative plan, are read together, the clear purpose emerges that the operation of a deeming provision by which an applicant is deemed or taken to have received a document, must necessarily be equated with notification of the applicant of the document - in this case, the decision." 24 So far as I can see, that decision is on all fours with the issue with which I am confronted. I should follow it, unless I think that it is clearly wrong: Bank of Western Australia Ltd v Federal Commissioner of Taxation (1994) 55 FCR 233 at 255 per Lindgren J, and the authorities referred to by his Honour, or unless there are decisions of the Court to opposite effect. 25 The construction of reg 5.03 so as to deem receipt at the address as notification to the addressee is consistent with the approach of the Court in cases concerning the question as to when a visa applicant has been notified of the decision of a delegate of the respondent, so as to determine whether an application for review to the Tribunal is within the time specified by s 412(1)(b) of the Act: Dawai v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 379; Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446; Santos v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 334; Shrestha v Minister for Immigration and Multicultural Affairs (Sackville J, unreported, 13 October 1997). Hill J in Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 506 also followed those decisions. Section 66(1) of the Act in such cases obliges the respondent to notify the visa applicant of the decision "in the prescribed way". 26 Hill J's use of the Regulations to inform the content of the concept of "notification" in s 478(1)(b) also accords with authority. Although, as Brennan J (with whom Deane and Kelly JJ agreed) said in Webster v McIntosh (1980) 32 ALR 603 at 606, the intention of the Legislature is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised, the position may be different if the Act and regulations together form part of a legislative scheme: Deputy Commissioner of Taxation v Ellis & Clark Ltd (1934) 52 CLR 85 at 89-95 per Dixon J; Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1985) 156 CLR 651 at 652; Thorn EMI Pty Ltd v Federal Commissioner of Taxation (1987) 13 FCR 491; Elazac Pty Ltd v Commissioner of Patents (1994) 53 FCR 86. 27 The applicant contended that the decisions of North J in Kamkar v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 424 and of Merkel J in Chun Wang v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 386, as well as the decision of the Full Court in Long Guan Chun (above), were decisions to the effect that s 478(1)(b) required actual notification, and were not decisions in part in reliance upon the previous form of reg 5.03. Thus, it was said, the decision in Susiatin was made in circumstances where there were inconsistent earlier decisions of the Court which I should follow. In addition, it was contended that judges of the Court had reached a different view to that in Susiatin with reg 5.03 in its current form: Alkaab v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 178; and Harinder Pal Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 613. 28 Before considering those decisions, I observe that in Nguyen v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 437, Moore J held that in s 478(1)(b) the reference to "the applicant being notified" was a reference to

"actual notification subject to the operation of reg 4.40 and any other regulation that, properly construed, also applies" (at 444)

His Honour assumed that the Act empowered a regulation to be made that would treat notification, for the purposes of s 478, as having occurred at a specified time, but he found that reg 5.03 as then expressed did not operate in respect of s 478(1)(b). Regulation 5.03 was then in its earlier form, in particular by being limited in its operation to the purposes of the Regulations. In the circumstances, his Honour also did not have to address whether the decision of the Full Court in Long Guan Chun (above), in any event, was to the effect that s 478(1) required actual notification. That reg 5.03, as it was then expressed, did not apply to notification required under s 478(1)(b) was also confirmed by Sackville J in Vinod v Minister for Multicultural Affairs (unreported, 14 August 1996). 29 In Kamkar, the notification of the Tribunal's decision was sent in accordance with reg 4.40, and was delivered at the address to which it was directed. The applicant had moved from that address the preceding day. No reference to reg 5.03 was made in the decision. Section 29 of the Acts Interpretation Act 1901 (Cth) was relied upon as prescribing the date of service of the notice as its date of delivery. North J rejected that contention, and concluded that s 478(1) required actual notification to the applicant of the decision. His Honour considered that reg 4.40 concerned the Tribunal's obligation under s 430(2) and was not meant to play a role in respect of s 478(1)(b). In that regard, he said that if

"the notification referred to in s 478(1)(b) could be achieved by something less than actual notification, there would have been a regulation dealing with the subject matter of the commencement of the running of time for the bringing of an application, and it would have dealt with the concept of notification." 30 By way of contrast, his Honour referred to ss 53 and 343(1) expressly permitting notification in a way to be prescribed by regulations. To that extent, his Honour disagreed with the conclusion of Moore J in Nguyen (above) that reg 4.40 did apply to the means of notification (as distinct from the time of notification) for the purposes of s 478(1)(b). 31 Although, in the course of his reasons, North J said that

"From this scheme, it appears that the Act intends actual notification unless the Act itself provides for some other form of notification, or it expressly allows regulations to prescribe some other form of notification.", his Honour also expressed disagreement with what he described as the tentative view of Moore J in Nguyen that s 504(1)(e) and (3) are wide enough to enable a regulation to be made that would treat notification, for the purposes of s 478, to have occurred at a specified time. I do not think that Moore J was expressing a tentative view to that effect. Rather, as I read his Honour's reasons, he was prepared to assume that to be the case but it was not necessary to consider the question because he was proposing to decide the application on other grounds.

32 The reasons for decision of North J, which isolate the scope of operation of reg 4.40 from s 478(1)(b) clearly depend upon the then state of the regulations. Regulation 5.03 has been amended since that decision in the manner described above. For what it is worth, by the same amendment a note was added to reg 4.40 to the effect that a notice or statement referred to in reg 4.40(1) is taken to be received at a time worked out under reg 5.03. In my view, the amendment to reg 5.03 has the consequence that it is no longer appropriate to isolate reg 4.40 from applying in appropriate circumstances to the means of giving the notification required by s 478(1)(b). As noted earlier, it has not been contended that the amendment to the Regulations effected by Statutory Instrument 109 of 1997 was beyond power. 33 One matter of considerable moment to North J was expressed in the following terms (at 428):

"If s 478(1)(b) contemplates notification of the decision of the Tribunal to the applicant without the applicant actually knowing of the decision, the applicant may lose the opportunity to commence a review without any fault, and without knowing that the opportunity has passed. An applicant would be regarded as having been notified if the applicant was lying in hospital in a coma when the decision was posted to the residential address of the applicant … The issues at stake in many review cases are of great personal importance in the lives of the applicants. The grounds upon which reviews may be brought involve allegations of serious errors by decision-makers, such as errors of law, acting without any evidence, or acting in accordance with a policy without regard to the merits of the case. Further, the Court cannot extend the time within which an applicant may commence a review. In all these circumstances, Parliament cannot have intended, without clear words, to deny an applicant a right of review without the applicant receiving actual notification of the decision. Such clear words do not exist." 34 A similar view was expressed by Merkel J in Wang (at 390-399):

"Further, it would be an extraordinary result under the Act if a person's right to review a decision, that can affect that person's life and well-being, can expire before the person becomes aware of the decision. Later in these reasons I discuss the principles of statutory interpretation which tend to reject such an approach unless the clear words of the statute require it." 35 His Honour reached the view, following Long (above), that for the purposes of s 478(1), a person is notified of a decision of the Tribunal only when the decision is actually communicated to that person. His Honour regarded that result as necessary to fulfil the primary statutory purpose of 'notification', namely to enable the person notified of the decision to consider it and, if so advised, to apply to review it within twenty-eight days of that notification. The circumstances of that case involved a notice which was not addressed properly to the applicant and his subsequent communications with officers of the Minister. The facts did not require his Honour to consider specifically the operation of regs 4.40 and 5.03 in relation to s 478(1)(b). 36 In Alkaab (above) Tamberlin J found that, for the purposes of s 478(1)(b), notification of the decision of the Tribunal was effected under reg 5.03 seven days after the notice of the decision was sent, so that the review application was in time, notwithstanding that the letter containing that notice sent to the applicant's address for service (his solicitor's address) was in fact received and read by the applicant's solicitor sooner than seven days after the notice was sent. If the date of notification were the date the solicitor read the application, the application would have been out of time. The applicant, in effect, benefited by the application of reg 5.03(1)(a) to the fixing of the notification date. 37 Tamberlin J referred to the earlier authorities concerning the interaction of s 478(1)(b), and regs 4.40 and 5.03, prior to its amendment. His Honour noted that those earlier authorities demonstrate

"… a tension between the competing considerations which underpin the approaches taken to the notification provisions in the Act and regulations. On the one hand these considerations include the desirability for jurisdictional certainty, efficiency, and uniformity in administrative and judicial review proceedings and, on the other hand, the avoidance of hardship and injustice arising from the imposition of arbitrary time limits based on deemed or constructive notification, which may not accord with the reality."

38 His Honour observed that the amendment to reg 5.03 appears to have been made in response to those earlier decisions, including Kamkar, and that, with those amendments, "the balance shifted towards greater certainty". That certainty, in that case, meant invoking reg 5.03 so as to deem the date of notification as seven days after the date the decision was sent. The application was then within time. His Honour noted, but did not need to deal with, the alternative argument for the applicant that s 478(1)(b) continues to require actual notification to the applicant (see at 380). 39 In Harinder Pal Singh (above) the issue was as to the correctness of the Tribunal's decision that by reason of ss 53(3) and 66(1), and regs 2.16 and 5.03, the visa applicant had been notified of the decision of the delegate of the respondent by the notification being sent by registered mail to his postal address, although not then actually received by him. The Tribunal found that the application under s 412 to review the delegate's decision was out of time. In the circumstances of that case, his Honour found that the letter giving notice of the delegate's decision had been sent to an address other than the address notified by the applicant under s 53(3), so reg 5.03 was not properly activated. His Honour clearly had empathy with the views expressed by Merkel J in Wang (above) and by Sackville J in Shrestha (above) that the potentially harsh operation of reg 5.03 should be carefully scrutinised to ascertain if that were the true legislative intent, bearing in mind the consequence that "at stake may be the life or freedom of the individual concerned." (par 11). 40 Long Guan Chun (above)directly concerned s 478 of the Act. The Tribunal had determined that each of the three appellants was not entitled to a protection visa. Each of the appellants was sent a letter constituting the statement required by s 430(1) of the Act, but because they did not speak or read English the substance of the letter was told to them in their language on 31 October 1994. The application for review under s 478(1) was not instituted until 30 November 1994, more than twenty-eight days after that conversation. 41 The Full Court (Jenkinson and Beazley JJ, Lee J dissenting) held that for the purposes of s 478(1)(b) the appellants were notified of the decision of the Tribunal by the conversation on 31 October 1994 so that the applications to the Court to review the decisions were out of time. Their Honours in the majority held that the proper construction of s 478(1) did not require that the visa applicants also be notified of the reasons for the decision. That was a significant conclusion, because Lee J (with whom Beazley J agreed on this point) held that the appellants had not then been notified of the reasons for the decision. Lee J dissented because his Honour took the further step of concluding that notice of the reasons for the decision also was necessary to activate the twenty-eight day time period specified in s 478(1)(b). On that later point, Jenkinson J took the view that the adviser/solicitor was also authorised to receive on behalf of the appellants the letter containing the statement of reasons provided under s 430 so that, on that occasion when the respondent's officer handed over that notice to the solicitor, it constituted delivery to the appellants of the reasons for the decision in any event. That conclusion made it unnecessary for his Honour to address the content of the expression "being notified" in s 478(1)(b). 42 It is, in my view, significant that reg 5.03 (then in its unamended form) was not in issue in the appeal. The letter constituting the notice under s 430(1) was dated 26 October 1994, and the deemed date of its receipt under reg 5.03 was therefore 2 November 1994. If that were the relevant date, the applications for review were within time. The letters were sent by post to a post office box maintained by the Department, collected by officers of the Department, and handed to the volunteer legal practitioners who provided advice to the appellants. Lee J found (and Beazley J agreed on this topic) that the letters were not served on the applicants by coming into possession of the voluntary legal advisers on 31 October 1994. The issue therefore was whether the conversations themselves constituted "being notified" for the purposes of s 478(1)(b) (see per Lee J at 176). As noted, Jenkinson and Beazley JJ concluded that they did, so the applications were out of time. 43 I do not think that those circumstances disclose that the Full Court addressed the issue which is now before me. 44 For those reasons, I do not consider that any of the decisions on which the applicant relies constitute decisions on the application of reg 5.03 in its present form to the notification required by s 478(1)(b). Nor do I think that, in so far as they deal with s 478(1)(b) generally, any of those decisions expresses a conclusion that, having regard to reg 5.03, notification under s 478(1)(b) must be actually received by the visa applicant. 45 I share with other judges of the Court the view that the Court should look very carefully at a construction of s 478(1)(b) and reg 5.03 which could produce the "extraordinary result" (to use Merkel J's words) that the right of review which may ultimately affect a visa applicant's life or freedom may be lost before the visa applicant is aware of the decision of the Tribunal in respect of which review may be sought. However, as Beaumont J found in Susiatin (above), that possibility is what has been created by the Legislature. 46 So far as I am aware, the decision of Beaumont J is directly on point. I do not consider that it is wrong. Indeed, with respect, I agree with the reasons of Beaumont J. I think that conclusion is consistent with decisions of the Court concerning s 412(1)(b). I also consider that, given the terms of s 504(3) in particular, the views of Beaumont J about the significance of the regulations as part of the legislative scheme is apposite. As counsel for the respondent put in submissions, the meaning of reg 5.03 is "intractable". The right of review provided by Pt 8 of the Act has been sacrificed, in the sense that it may be lost before a visa applicant knows that it exists, on the altar of administrative certainty. 47 Accordingly, I conclude that the application for review was not made within the time prescribed by s 478(1)(b) and must be dismissed. I so order. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 9 September 1999 Counsel for the Applicant: Mr M Clisby

Solicitors for the Respondent: Australian Government Solicitor