Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 | Case summary

REASONS FOR JUDGMENT BUCHANAN J: 6 These two matters were heard together. Each is an application for leave to appeal against an interlocutory decision of a Federal Magistrate (SZKKC v Minister for Immigration and Anor [2007] FMCA 532 and SZJMA v Minister for Immigration and Anor [2007] FMCA 410). In each case the decision under challenge was delivered on 12 April 2007. The issues raised for the Court's consideration are important ones. I would grant leave to appeal in each case. 7 The appeals raise for consideration the operation of s 477 of the Migration Act 1958 (Cth) ('the Act') which limits the time within which an application for judicial review must be made to the Federal Magistrates Court by periods which commence from 'the actual (as opposed to deemed) notification of' a migration decision. The respondents are each in detention. They each sought judicial review in the Federal Magistrates Court of a decision by the Refugee Review Tribunal ('the RRT') to affirm a decision of a delegate of the appellant (the Minister) to refuse a protection (class XA) visa. They each said that they did not receive actual notification of the decision until shortly before they commenced proceedings in that court. The Minister contends, in each case, that actual notification of each decision, upon a proper construction s 477, occurred much earlier and that the cases may not be heard. 8 Jurisdiction for the Federal Magistrates Court to hear applications for judicial review of migration decisions is granted by s 476 of the Act. Section 474 puts a large number of migration decisions beyond the reach of s 476 but it does not do so effectively in the case of decisions of the RRT which involve jurisdictional error (see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476). The question whether there might be jurisdictional error in the decisions of the RRT in the present cases has not yet been addressed. The decisions under appeal dealt only with whether the time limits in s 477 prevented, at the outset, any jurisdictional challenge to either decision. In each case it was held that they did not. 9 Section 477(1) of the Act provides: '(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.' 10 None of the provisions to which reference will need to be made uses the word 'deem' or 'deemed' when referring to a method or time of notification. They use, instead, the phrase 'is taken'. That term, when used in legislation, is generally understood to operate as a deeming provision. The use of the term in that sense in the Act is confirmed by s 5(23) of the Act, which provides: '5(23) To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.' 11 The Minister's contentions are summarised in written submissions advanced on his behalf in the following way: '5. In short, the Minister contends that, on its proper construction, time starts to run under s 477 of the Migration Act when: a) in circumstances where the Act provides a notification regime for a particular type of decision, that notification regime has been engaged and at least one of the persons to whom notice is to be given has actually received notice in the form specified in the migration legislation; b) in circumstances where the Act provides no notification requirements for a particular type of decision, when the person who seeks to commence proceedings under s 477 became aware of the result of the decision. 6. In the alternative, the Minister contends that the test in paragraph (b) of the preceding paragraph applies in all cases (whether or not the Act provides for a regime of notification).' 12 The issues which are thereby raised for determination may be distilled into the following two questions: (1) What is involved in the concept of notification of the decision for the purposes of s 477? The respondents contend, relying particularly upon the authority of WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94; 210 ALR 190 (WACB) that notification under s 477 involves delivery of the written statement required to be prepared by the RRT under s 430(1) of the Act. (2) Who should be notified of the decision in respect of which judicial review is sought? Must it be the applicant in every case or is it sufficient that an authorised recipient is notified? 13 Sections 477, 477A and 486A are in similar form. They, respectively, state a time limit to commence proceedings in the Federal Magistrates Court, in the Federal Court of Australia and in the High Court. Section 486A has been declared invalid (Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 81 ALJR 905; 234 ALR 114) but that decision does not affect the present cases nor the competing constructions of s 477 which were advanced for our consideration. The history of amendments to the Act discloses that ss 477, 477A (which appear in Part 8 of the Act) and 486A (which appears in Part 8A of the Act) in their present form were each introduced in 2005 and were superimposed on already comprehensive arrangements in the Act dealing with the review of migration decisions, including those in Part 7. 14 Part 7 (which commences at s 410 of the Act and extends to and including s 473 of the Act) contains the following Divisions: 1 - Interpretation, 2 - Review of decisions by Refugee Review Tribunal, 3 - Exercise of Refugee Review Tribunal's powers, 4 - Conduct of review, 5 - Decisions of Refugee Review Tribunal, 6 - Offences, 7 - Miscellaneous, 7A - Giving and receiving review documents, 8 - Referral of decisions to Administrative Appeals Tribunal, 9 - Establishment and membership of the Refugee Review Tribunal and 10 - Registry and officers. 15 The provisions made in Divisions 5 and 7A are the ones of particular relevance for present purposes. Division 5 contains sections 430 to 431 (including ss 430A, 430B, 430C and 430D) and Division 7A contains sections 441AA to 441G. Together those two divisions contain the 'notification regime' referred to in the Minister's written argument, which is relevant to the present cases. 16 Section 430(1) (in Division 5) provides as follows: '(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based.' 17 Other provisions in Division 5 specify how, when and in what circumstances the written statement is to be given to an applicant for review. Some of these provisions are clearly deeming provisions, others are not. 18 For example, in the case of a decision which is given orally s 430D provides: '(1) If the Tribunal gives an oral decision on an application for review, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 430(1) within 14 days after the decision concerned is made. The applicant is taken to be notified of the decision on the day on which the decision is made. (2) If the applicant is in immigration detention, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 430(1) within 14 days after the decision concerned is made.' 19 Section 430D(1) contains a deeming provision. It would be ineffective for the purpose of s 477. Section 430D(2), on the other hand, requires actual notification. In WACB it was held (at [37]) that physical delivery was required in precisely such a case. 20 In the case of a decision which is to be handed down in writing the following provisions are significant: '430B (4) The date of the decision is the date on which the decision is handed down. (5) If the applicant and the Secretary are present at the handing down of the decision, the Tribunal must give each of them a copy of the statement prepared under subsection 430(1). (6) If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1). The copy must be given to the applicant: a. within 14 days after the day on which the decision is handed down; and b. by one of the methods specified in section 441A.' 21 The starting point, therefore, in the case of a decision handed down in a written form is that it must be either given to the applicant at that time or (as the present cases involve) be notified by being given to the applicant in a specified way. Of course, and as will be seen, if any of these methods involve deemed notification that method is ineffective for the purpose of s 477. 22 Apart from those methods (which will be dealt with shortly) s 430C permits notification to an applicant to be accomplished through a representative. Section 430C provides: '(1) If a representative of the applicant is present at the handing down of a decision under section 430B, the applicant is taken to be notified of the decision on the day on which the decision is handed down. (2) If a representative of the applicant is notified of a decision under subsection 430B(6), the applicant is taken to be notified of the decision on the day on which the representative is so notified.' 23 Each aspect of s 430C involves a deeming provision. Each is therefore ineffective for the purpose of s 477. 24 The provisions to which reference has so far been made (ss 430, 430B, 430C and 430D) are all in Division 5 of Part 7 of the Act. Section 441A and other provisions engaged by it are in Division 7A. At the time of the judgment in WACB the provisions in Division 5 and Division 7A were already in place but Division 7A (which also contains deeming provisions) had been introduced after the events addressed in WACB. That case concerned notification in accordance with s 430D(2) to an applicant in detention. The provisions in Division 5 played an important part in the reasoning in the case but it must be borne in mind that no deeming provisions were directly involved. WACB also concerned other provisions (since repealed) which required that an application for review of certain decisions (now within the meaning of the term 'migration decisions') be lodged with the registry of the Court 'within 28 days of the applicant being notified of the decision'. That issue before the High Court was stated this way (at [3]): '[3] The task on this appeal is to construe the phrase "notified of the decision" in s 478(1)(b), in light of the subject, scope and purpose of the relevant provisions of the Act.' 25 An important issue in WACB, and for the present appeals, concerned what was to be notified and how. The High Court accepted a submission that the provisions in Division 5 of Part 7 of the Act in that respect constitute a 'code'. It recorded (at [11] and [15]): '[11] An integral element of the code is the stipulation that a written statement containing inter alia the reasons for the RRT's decision to be "given" to the applicant, putting it shortly, either at the time the decision is handed down, or within 14 days of the date on which the decision is handed down.' … [15] When regard is had to the legislative history of the notification provisions, their subsequent amendment, the operation and function of the code, and the purpose of s 478, it will be apparent that what is required to constitute notification of the decision under s 478(1)(b) is a fulfilment of the code. This requires, in a case such as the present where a written rather than oral decision was given by the RRT, the giving of the written statement provided for in s 430(1)…' 26 These passages contain explicit references to the written statement required to be prepared under s 430(1) and to the operation of s 430B(6). The High Court rejected a submission for the Minister that, because the written statement required by s 430(1) contained not only the decision but other matters also, notification of a decision was different from provision of that written statement. The judgment said (at [36] and [37]): '[36] If this submission were correct it would leave open the issue of that which constitutes notification in s 478(1)(b), presumably to be filled by reference to its ordinary meaning, and it would ignore the structure and historical development of the Act. However, the construction of s 478(1)(b) is apparent from the text and structure of the Act itself. Hence, such a submission, which at first blush may appear to have merit due to the equivalent language in ss 478(1)(b) and 430(1)(a), should be rejected. Notification of the decision under s 478(1)(b) requires that the code in Pt 7, Div 5 (the RRT) or in Pt 5, Div 6 (the MRT) be observed. In all cases, other than where the tribunal decision is given orally, notification of the decision for the purposes of s 478 occurs when the written statement is given to the applicant for review by the Federal Court. [37] … What is required is that the written statement be physically given to the applicant. Only once this has occurred can it be said that s 478(1)(b) is enlivened and time begins to run.…' 27 In the present case the respondents urged that there was no reason to depart from these findings which should be regarded as remaining authoritative in all relevant respects. The Minister, on the other hand, argued (although it was not his 'preferred position') that the replacement of s 478 by the provisions now found in Part 8 and Part 8A (including ss 477, 477A and 486A) might be seen as bringing about a fundamental shift in the statutory scheme so as to render inapplicable the observations in WACB. In my view this contention should not be accepted. The decision in WACB, so far as it proceeded upon the acceptance of the provisions of Division 5 as a code, is unaffected except by the fact that any deeming provisions in, or incorporated by, Division 5 are rendered ineffective for the purpose of s 477. 28 In my view, therefore, it must be accepted that a requirement upon the RRT to notify an applicant of a decision which confirms an earlier decision of a delegate of the Minister to refuse a protection visa must be accomplished by giving the written statement required, by s 430(1), to be prepared by the RRT. 29 The next questions are how (in order to constitute actual notification for the purpose of s 477) such written statement must be given and to whom. Given the ineffectiveness (for s 477) of delivery to a representative under s 430C it is to s 430B(6) that primary attention must be paid. Section 430B(6) was described by the High Court in WACB (at [11]) as 'an integral element of the code'. It now directs notification to an applicant by one of the methods specified in s 441A. The methods specified in s 441A (and further related provisions) are in Division 7A and were introduced by the enactment of the Migration Legislation Amendments (Electronic Transactions and Methods of Notification) Act 2001 (Cth). 30 The High Court did not in WACB deal with those provisions although it described them (at [40]) as providing 'for deeming provisions for all forms of communications from both the MRT and the RRT to applicants, including the delivery of written statements'. That description no doubt refers to the overall and integrated nature of the arrangements made by Division 7A. However, it is necessary to give specific attention to some particular provisions within Division 7A for the purpose of the present analysis. 31 The provisions in Division 7A permit documents to be given to persons by a number of specified methods. The documents are not restricted to decisions upon applications for review but extend to documents obliged to be given during the conduct of a review, such as written notice of potentially adverse information (s 424A) and an invitation to appear before the RRT (s 425). Where a document is required or permitted to be given to a person by the RRT and the relevant provision of the Act or regulations does not state that it must be given as specified in s 441A then it may be given by any method the RRT considers appropriate (s 441AA). 32 However, where the document is to be given by a method specified in s 441A (as s 430B(6) requires) a specific catalogue of such methods is prescribed. They include giving the document by hand, handing it to a person apparently over the age of 16 years who appears to live or work at an address last provided by a potential document recipient, dispatch by prepaid post or other prepaid means and transmission by fax, e-mail or other electronic means. The methods of notification either involve physical delivery (by hand or by post) of the written statement prepared under s 430 or electronic transmission which involves a physical, or potentially physical representation of the contents of the document. Although these directions specify the possible methods of communication which may be employed they are not, in terms, deeming provisions and if it is possible to read them in isolation they would not be affected by s 477. 33 Section 441A says nothing about when notification by the intended recipient is achieved. Section 441C, however, provides for the time at which, in each circumstance permitted as a method of communication by s 441A, a document is taken to have been received by the person to whom it is, by that method, 'given' (including, incongruously, when it is deemed to be received if given by hand). Each of these provisions in s 441C is a deeming provision. Clearly enough, s 441C is ineffective for the purposes of s 477. 34 Although s 441A is not, if read in isolation, a section dealing with deemed notification, in my view it cannot be read (except in one respect) in isolation. Apart from delivery by hand, each of the other methods of delivery permitted by s 441A depends upon the operation of the corresponding deeming provision in s 441C in order to have practical effect. Leaving a document with someone else, dispatching it by some pre-paid means or sending it electronically are incomplete methods of physical delivery to an applicant. Section 441C supplies the missing element in each case by prescribing when receipt is taken to have occurred. If s 441C has no operation for the purpose of s 477 the integrated scheme set up under Division 7A by the combination of s 441A and s 441C has almost entirely failed in its purpose. 35 The one exception arises under s 441A(2) where delivery by hand is a method provided for by s 441A (and hence by s 430B(6)). Although s 441C(2) provides that receipt in such a case is taken to have occurred when the document is handed to the recipient, the deeming aspect of this method may be disregarded without altering or denying the effectiveness of that method by which a document may be 'given'. 36 Apart from this exception in my view ss 441A and 441C are inseverable. Read together, as they are clearly intended to be, they provide a scheme for deemed rather than actual notification and are rendered ineffective (except to the extent already indicated) by the terms of s 477. 37 The result of the foregoing analysis is that the sole method of actual (as opposed to deemed) notification of the written statement, required by s 430(1) to be prepared by the RRT, which is provided by the Act, is delivery by hand. Such a result (although it is reached by consideration of the current provisions in Part 7 of the Act) accords with the outcome in WACB and the emphasis, in the passages earlier quoted, on physical delivery. 38 The specification by s 430B(6) of how a document is to be given to an applicant, read together with the restrictions imposed by s 477 doubtless make it unnecessary to give attention to other methods of proving delivery of documents under the general law. It is therefore only necessary to mention in passing that s 29 of the Acts Interpretation Act 1901 (Cth) could not sustain s 441A(4) (dispatch by prepaid post) because it too (if it otherwise applied) is a deeming provision. Section 160 of the Evidence Act 1995 (Cth) ('the Evidence Act') erects a rebuttable presumption about receipt of prepaid posted articles but does not apply to the work of the RRT (see s 4 of the Evidence Act and s 420 of the Act). 39 There remains the question of whether, in every case, it is to the applicant personally that the written statement, required by s 430(1) of the Act to be prepared by the RRT, must be given. 40 This question involves consideration of the operation of s 441G. Section 441G(1) and (2) provide: '(1) If: (a) a person (the applicant) applies for review of an RRT-reviewable decision; and (b) the applicant gives the Tribunal written notice of the name and address of another person (theauthorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review; the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. (2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.' 41 The Minister argued that s 441G(1) directs actual notification to an authorised recipient within the meaning of s 477 because it requires delivery of documents to an authorised recipient 'instead of the applicant'. The submission expressly put to one side the provisions of subs (2). It relied in part upon the fact that s 477 does not make any reference to a particular recipient (unlike s 478 as considered in WACB). The submission was supported by the suggestion that if actual notification to an authorised recipient was ineffective for the purpose of s 477 that would permit applicants to manipulate the legislative scheme by ensuring that communications were directed to authorised recipients with the result that a decision given in this way as required by s 441G(1) was not ever actually or effectively notified to an applicant for the purpose of s 477. 42 The respondents submit that s 441G should be read in its entirety, including subs (2), which clearly contains a deeming provision. The respondents argued that a deeming provision of this kind emphasises the existence of an otherwise primary requirement to provide documents to an applicant. On this approach giving a document to an authorised recipient is not effective actual notification of an applicant for the purpose of s 477. As to the practical considerations identified by the Minister, because s 441G(2) provides that the RRT may also give the applicant a copy of the document in question the ordinary processes for notification are available. The position is the same as if there was no authorised recipient. No violence is done to the legislative scheme. 43 A conclusion as to the correct approach to s 441G and the overall operation of the statutory scheme is not easily reached. There are attractive arguments on both sides. The problem appears in very large measure to have been created by the introduction of the requirement for 'actual (as opposed to deemed) notification' in s 477 (and s 477A and s 486A) without much attention to how these additional provisions would interact with the comprehensive and interlocking arrangements already in place in Part 7 (which include, in particular, Divisions 5 and 7A) and also in other Parts of the Act (eg Part 5 which deals with the work of the Migration Review Tribunal ('the MRT') and contains, in Divisions 6 and 8A, provisions very similar to those in Divisions 5 and 7A of Part 7). 44 In Lee v Minister for Immigration and Citizenship [2007] FCAFC 62 and SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63 it was held that s 379G (which applies similar provisions to s 441G to the MRT) and s 441G (in relation to the RRT) operated to substitute, for an obligation to send a document to an applicant, an obligation to send it instead to an authorised recipient. It was held, further, that provision of a copy to an applicant (as permitted by s 379G(2) and s 441G(2)) did not derogate from the necessity to comply with s 379G(1) or s 441G(1). 45 The judgments in those two cases concerned obligations to give particulars of certain matters (s 359A) and an invitation to appear (s 425A) to the respective applicants. The substitution of the obligation to give the documents to an authorised recipient instead of an applicant was found to be strict. It is but a short step to suggest that the substitution is, as the Minister contends, fully effective to meet the obligation raised by s 430B(6) to give a written statement to an applicant. However, that extra step requires, as the Minister's submission necessarily accepts, that s 441G(2) should be left out of account. In my view that is not possible. Upon its ordinary construction s 441G is effective to substitute an authorised recipient for an applicant not only because of the direction in s 441G(1) but also because s 441G(2) provides for the deemed satisfaction of any requirement to notify, or provide a document to, an applicant. These twin aspects are like opposite sides of the same coin. In any view they cannot be read in isolation from each other just because s 477 is involved, any more than they could ordinarily. 46 I see no alternative but to treat s 441G as incorporating, as an integral part of its arrangements, a deeming provision which (apart from s 477) operates to modify the requirement in s 430B(6) that a decision be notified to an applicant by giving a written statement to the applicant. Instead (apart from s 477) the applicant is deemed to be notified when the written statement is given to an authorised recipient. Section 477 prevents reliance on that facility. In my view it is impossible to divorce s 441G(1) from the operation of subs (2). They must be read together. Section 441G is, properly construed and read as a whole, a deemed notification provision within the meaning of s 477. It is not effective for the purpose of s 477. That is not to say that it ceases to require delivery of documents to an authorised recipient. The effect of the analysis is that, for the purpose of the time limits in s 477, the applicant also must be given the written statement containing the decision. 47 The result is that so far as the limitation periods in s 477 are concerned applicants with authorised recipients will be treated in the same fashion as applicants without authorised recipients. Before their right to apply for judicial review of a decision of the RRT which is alleged to be beyond jurisdiction is extinguished it will be necessary for the periods of time prescribed by s 477 to pass after the applicant is given personally the written statement required by s 430(1) of the Act to be prepared by the RRT. 48 One further matter should be mentioned. Section 477(4) permits further provision about notification of a decision to be made by regulations. Sections 477A and 486A contain a similar authorisation. Section 477(4) provides: '(4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.' No regulations have been made pursuant to this power. In SZIVA v Minister for Immigration and Anor (2006) 204 FLR 95 Smith FM referred to s 477(4) and said: 'No regulations have been made under this provision, and it is difficult to envisage what they might contain, consistent with the intent of s 477(1) and (2) that ways of notification must be "actual (as opposed to deemed)".' It is not necessary, for the purpose of the present appeals, to pursue the matter further. The question of whether regulations should be made for the purpose of s 477(4) and their possible content is a matter for the executive government. 49 It follows from the earlier analysis that I would reject the Minister's submissions and the construction urged by him in its various and alternative aspects. The result is that the substance of the requirements stated by the High Court in WACB remains in effect despite the commencement of Division 7A and the repeal of s 478 in its earlier form. For the purposes of s 477 actual notification to an applicant of a decision of the RRT must be accomplished by physical delivery of a written statement prepared by the RRT in accordance with s 430(1) to the applicant personally. 50 Attention must then be given to the facts of the individual cases and another argument raised by the Minister in one of them concerning the question whether the Minister bears an onus when challenging jurisdiction.

Minister for Immigration and Citizenship v SZKKC

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Judgment (14 paragraphs)

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