Minister for Immigration & Multicultural Affairs v Singh

Federal Court of Australia|2000-01-21|Before: Sackville J, Mansfield JJ

O'CONNOR & MANSFIELD JJ: 1 This is an appeal from a decision of a judge of the Court granting judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") and remitting to the Tribunal the application for review for determination on its merits. The circumstances in which this appeal arises can be shortly stated. 2 On 14 April 1997 the respondent ("Mr Singh"), an Indian national who arrived in Australia on a visitor's visa on 18 March 1997, applied for a protection visa under the Migration Act 1958 (Cth) ("the Act"). A delegate of the appellant ("the Minister") refused that application on 15 September 1997. On 17 November 1997, Mr Singh under Div 2 of Pt 7 of the Act applied to the Tribunal to review that decision. On 16 January 1998, the Tribunal ruled that it did not have jurisdiction to review the decision of the delegate of the Minister, because the application for review was not brought within the time prescribed under s 412(1)(b) of the Act and reg 4.31 of the Migration Regulations ("the Regulations"). 3 Mr Singh sought judicial review of that decision. On 11 May 1999, a judge of the Court upheld that claim. His Honour set aside the decision of the Tribunal, and remitted the matter to the Tribunal with the direction that it hear and determine Mr Singh's claim for a protection visa on the merits. The Court held that the Tribunal had erred in holding that, in the circumstances, the application was not made within the prescribed time. It is that decision from which the appeal is brought. 4 Section 412 relevantly provides:

5 Regulation 4.31 of the Regulations prescribes the period within which an application for review of a Tribunal decision may be brought. It 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. NOTE: A notice sent under subregulation (2) is taken to be received at a time worked out under regulation 5.03." 6 The issue in this case is the date upon which Mr Singh was notified of the decision of the delegate of the Minister, made on 15 September 1997. As the respondent was not at the time in immigration detention, his application for review of that decision had to be made within twenty-eight days from the date upon which he was notified of it. 7 Section 53 of the Act provides:

"(1) A visa applicant is to tell the Minister the address at which the applicant intends to live while the application is being dealt with. (2) If the applicant proposes to change the address at which he intends to live for at least 14 days, the applicant must tell the Minister the address and the period of proposed residence. (3) If the Minister sends or leaves a notification to the applicant at the address for the applicant given under subsection (1) and (2), the notification is taken to have been received by the applicant even if it was not received. …"

8 Section 66 obliges the Minister to notify a visa applicant of a decision to grant or refuse to grant a visa. It relevantly provides:

"(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way."

9 Regulation 2.16(1) of the Regulations contains the prescription as to the means of notification of a decision. It 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) …; or (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) …"

10 Following the decision made on 15 September 1997, a letter from the Department of Immigration and Multicultural Affairs ("the Department") dated 15 September 1997 was posted to Mr Singh at 215 Macquarie Street Dubbo NSW 2830. The letter informed him of the decision and enclosed the record of the decision including the reasons for refusing his application. It is convenient to call the letter and its enclosure "the letter". It was posted by registered mail on 17 September 1997. That address was the current address given by Mr Singh under s 53(1) of the Act. Mr Singh had not given an address to the Minister under s 53(4) of the Act. 11 It is the fact that the letter was sent by registered mail which gives rise to the issue in the proceedings. 12 The Tribunal decided, by reason of reg 5.03 of the Regulations, that the letter was deemed to have been received by Mr Singh by 24 September 1997 so that any application for review had to have been lodged by him within twenty-eight days of that date. It was common ground that it was not lodged within that time. Regulation 5.03 provides:

"(1A)This regulation applies to a document sent by the Minister or a Tribunal 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; or (b) … (2) Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document." 13 Mr Singh's response was that he had not in fact received the letter until 13 November 1997. 14 When the application for review was made to the Tribunal, Mr Singh enclosed a photocopy of a statement dated 13 November 1997 provided by the postal manager of the Dubbo Post Office of Australia Post to the Department in the following terms:

"This is to certify that Mr Harinder Pal Singh of 215 Macquarie Street DUBBO did not take delivery of a registered article number RP2497874 lodged on approximately 15th September 1997 until today 13th November 1997. The reason for delay in delivery was that the article was inadvertently misplaced and a second card for the article was not posted until yesterday 12 November 1997." 15 His Honour found on the application for judicial review:

"When postal articles are sent by registered post, they are not in fact delivered to the intended recipient but are retained by the nearest applicable post office which sends out a card of notification to the person concerned requiring the collection of the article from the post office within a certain time. If the article is not collected by that time, a second card is sent out. As I understand the position, if there is no response to that card, the article is sent back to the original sender." 16 The Tribunal file, before his Honour, also included what appears to be a copy of a departmental envelope containing a record of the registered post, addressed to Mr Singh, and containing a printed standard direction to return the letter if not delivered within seven days. It also contains three handwritten annotations: "Carded 19/9", "2nd 12/11", and "P/19". There was no evidence before his Honour of the practice of Australia Post with respect to registered mail. Counsel for the Minister on the appeal did not accept the accuracy of his Honour's description of the registered post process. Also, there was no evidence as to the significance of those annotations on the envelope, or their authenticity. There was no evidence that a first card was in fact sent, or, if so, with what response. One possibility is that a card was sent, and that Mr Singh or someone else on his behalf attended the Dubbo Post Office and was told in error that there was no letter to which the card related. Another possibility is that the letter was sought to be delivered to the address given, but because no one was present to accept and sign for it, a card was left at that address, and then later a person attended at the Dubbo Post Office and was told that there was no letter to which the card related. Yet another possibility is that no card was sent. There may be other possibilities. Given the statement from the postal manager, it is easy to infer that the notation "2nd 12/11" relates to the card sent to Mr Singh at that address so that he collected the letter the following day, leading to the application for review. 17 The Minister contended, and the Tribunal found, that by reason of the combined operation of s 53(3), 66(1), reg 2.16(1) and reg 5.03, the posting of the letter by registered mail on 17 September 1997 meant that · it was sent to Mr Singh's address as provided by him to the Minister, and · it was taken to have been received by him seven days after 17 September 1997, and · Mr Singh is deemed to have been notified of the decision on 24 September 1997. Consequently, his application was out of time. That view of those statutory provisions has been accepted by the Court in a number of decisions: Dawai v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 379 ("Dawai"); Santos v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 334 ("Santos"); Tabet v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 446 ("Tabet"); Shrestha v Minister for Immigration & Multicultural Affairs [1997] FCA 1051(Sackville J, 13 October 1997) ("Shrestha"); Tjandra v Minister for Immigration & Multicultural Affairs (1998) 50 ALD 454; Dharminder Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 506 ("Dharminder Singh"); Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 1375, and Naheem v Minister for Immigration & Multicultural Affairs [1999] FCA 1360. Dharminder Singh is also the subject of an appeal to the Court, heard together with this appeal. In each of those decisions, it was accepted that the statutory provisions operated to deem notification of the decision of the delegate of the Minister, notwithstanding that the applicant may not have received actual notification of the relevant decision until some later time than that deemed by the Act and the Regulations or at all. 18 The learned primary judge concluded that, by reason of the letter being sent by registered post, it was in effect a sending of the letter to the post office and not to the address of Mr Singh. Consequently, his Honour reasoned, s 66(1) of the Act, which obliges the Minister to notify Mr Singh of his decision to refuse to grant the visa "in the prescribed way", was not satisfied. The notification was not given by sending it to, or leaving it at, the last address given to the Minister by Mr Singh under s 53 of the Act, as prescribed by reg 2.16(1)(c). His Honour observed that it was common ground that the letter was not left at 215 Macquarie Street Dubbo (that was not apparently common ground, as the Court was told on the appeal), and that the issue was whether it was "sent to" that address. By reason of it having been registered mail, his Honour found that it was in fact sent to the Dubbo Post Office, the nearest post office to the address, where the process was undertaken of sending or delivering to the address a card informing Mr Singh that there was a registered article for collection at the post office. 19 His Honour acknowledged that the decisions referred to above led to the conclusion that s 53 deemed receipt of a document sent to the correct address. He was not, however, prepared to conclude that the letter had been sent to the correct address. As he pointed out, it would be capricious that a letter addressed correctly but sent to the wrong address (perhaps because it was inadvertently attached to or stuck behind another envelope) would be deemed to have been received at the address to which it was not sent as a matter of fact. Given the obviously harsh consequence which the alternative construction of "sending" might produce, his Honour said that the document had to be sent to the address given. In the present case, by adopting the process of registered mail, his Honour concluded that it was the choice of the Minister not to send it to that address but to a different address, namely the post office itself. Regulation 5.03, therefore, did not come into play. The presumption of deemed receipt did not arise. 20 His Honour then applied the rebuttable presumption in s 29 of the Acts Interpretation Act 1901 (Cth) that the letter was received in the ordinary course of mail, unless proved otherwise. It was common ground that delivery of the letter did not in fact take place, because of a post office error, until four days before the application for review was filed. That presumption had been rebutted by proof of the fact. His Honour therefore found that the application was within time. Section 160 of the Evidence Act 1995 (Cth) ("the Evidence Act") also provides for a rebuttable presumption that a postal article sent "by prepaid post" addressed to a person at a specified address is received at that address on the fourth working day after having been posted. Neither of those provisions expressly relates to sending a letter by registered mail. The issues on appeal 21 The principle issue on appeal was whether the sending of the letter by registered mail amounted to it being sent to Mr Singh's address as required by s 66 and reg 2.16(1)(c) so as to enliven reg 5.03. If it was sent to that address, as prescribed by reg 2.16(1)(c), it would be deemed to have been received on 24 September 1997, even though the evidence proved that it was not, and even though Australia Post acknowledged that it did not deliver it for some time after 24 September 1997 through its own fault. 22 It was alternatively submitted by Mr Singh that reg 5.03 was invalid because it is "manifestly absurd in its effect." Reliance was placed upon certain observations of Gyles J in Guo Heng Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ("Guo Heng Li"). The manifest absurdity was said to arise because a document sent by the Minister is taken to have been received seven days after the date of the document, provided that the document was sent within seven days of the date of the document. A document may, therefore, be posted on the seventh day after it is dated and be deemed to have been received on that very day, even if posted from a capital city to a remote address in Australia. It is obvious that postage and delivery are not contemporaneous in fact. Regulation 5.03, it was submitted, therefore abridged the time provided for in s 412. Alternatively, it was contended, reg 5.03 is invalid for being unreasonable. 23 As noted earlier, the Minister did not accept the learned judge's description of the process for delivery of registered mail. He argued that the learned judge erred in finding that the letter was not sent to Mr Singh's address, but was sent to the Dubbo Post Office. He asserted (and it was not gainsaid) that the particular issue was not raised by Mr Singh in submissions or otherwise. He contended that there was no evidentiary basis upon which his Honour could have concluded that a decision was made to send the letter to the post office rather than to Mr Singh's address or that the letter was sent to the post office rather than to Mr Singh's address. It was also contended that his Honour was in error in concluding that a first card was not actually sent to Mr Singh (a matter upon which the Tribunal expressed no view), as it was said that the only logical inference from the evidence before the Tribunal and the Court was that a first card was sent. If a first card was sent by the post office to the address, it was suggested that the letter itself may have been taken to the address together with that card for collection on hand delivery if someone was present to receive it. It is common ground that there was no evidence on those matters. Consideration of contentions 24 The starting point for consideration of the contentions is s 66(1). It obliged the Minister to notify Mr Singh of its decision to refuse his visa application in the prescribed way. Regulation 2.16(1) prescribes the way in which that notification is to be given. Subparagraph (c) prescribes, in the present circumstances, for the notification to be given by sending a notice of the decision to the address at 215 Macquarie Street Dubbo NSW 2830. 25 The critical question is whether the letter was sent to that address when it was sent by registered pre-paid mail. If it was, then s 53(3) provides that the letter is deemed to have been received by Mr Singh even if it was not received by him. Regulation 5.03 then provides both that the letter is taken to have been so received by Mr Singh at the time it was taken to have been received at the address to which it was sent, and that the time it was taken to have been received at that address was seven days after the date of the letter. The letter was sent within seven days after its date: reg 5.03(2). Subject to determination of that critical question, that is the effect of the decisions such as Santos, Shrestha and Dharminder Singh referred to above. The particular significance, if any, of the use of registered pre-paid mail, compared to the use of what was called in submissions "regular" pre-paid mail to give notice of decisions concerning visa applications does not appear to have been addressed in those earlier decisions of the Court. 26 There is, as Tamberlin J observed in Alkaab v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 375, a tension between the competing considerations which underpin the approaches taken to the notification provisions in the Act and in the Regulations. His Honour said (at 379):

"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 avoid 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." 27 The decisions referred to above indicate that, at least in relation to the operation of ss 53 and 66(1), reg 2.16 and 5.03 have the effect of deeming the notification to have been received at the prescribed time once the condition precedent of sending the notice to the specified address is satisfied: see eg. Santos, at 337. The deemed receipt of the notice is conclusive in the interests of administrative certainty as to the time of notification and the expiry date for any review application. 28 The word "send" is not defined in the Act. Section 28A of the Acts Interpretation Act 1901 (Cth) relevantly provides: "(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then, unless the contrary intention appears, the document may be served: (a) on a natural person: (i) by delivering it to the person personally; or (ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or … (2) Nothing is subsection (1): (a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or …" 29 It was accepted that sending the notification required by s 66(1) of the Act, and as prescribed by reg 2.16(1)(c) of the Regulations, may be effected by pre-paid post to the address provided by the appellant under s 53 of the Act. It was also not in issue that registered mail is a form of pre-paid post. Whether or not the procedure adopted by Australia Post for the delivery of registered mail is as described by the learned judge at first instance, the position is that the letter was sent by pre-paid post and it was addressed to Mr Singh at the address he provided under s 53 of the Act. It was clearly intended to have been received by him. 30 Neither the Act and the Regulations, nor s 28A of the Acts Interpretation Act 1901 (Cth) draw any distinction between the use of registered pre-paid mail or "regular" or ordinary pre-paid mail. In R v Secretary of State for the Home Department, ex parte Yeboah [1987] 3 All ER 999, the Court of Appeal, in respect of similar legislative and regulatory provisions, also concluded that "sent" means dispatched by post, even though the notice there under consideration was not received by its addressee: see per Browne-Wilkinson V-C at 1005 with whom Parker and Ralph Gibson LJJ agreed. Nor is there any indication in s 29 of the Acts Interpretation Act 1901 (Cth) that the legislature intended to distinguish between sending pre-paid post by ordinary mail or by registered mail. If such a distinction was intended, it is evident that it would have been recognised in those provisions. Indeed, the terms of s 29 of that Act refer to service by post or sending by post in terms which readily encompass both ordinary and registered pre-paid post. Section 29(1) provides:

"Where an Act authorizes or requires any document to be served by post, whether the expression 'serve' or the expression 'give' or 'send' or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post." 31 Section 29(2) provides that the section does not affect the operation of s 160 of the Evidence Act. Section 160(1) of the Evidence Act relevantly provides:

"It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia … was received at that address on the fourth working day after having been posted." "Working day" is defined to exclude Saturdays, Sundays and public holidays. Although the Evidence Act does not apply to proceedings before the Tribunal (see Evidence Act, s 4), the same point may be observed, that no distinction is made between sending a letter by pre-paid ordinary post and pre-paid registered post. 32 The purpose of the provisions under consideration is to provide a scheme to achieve administrative certainty in the manner and time of giving notice of decisions made with respect to visa applications, and as to the expiry date for any application to review such decisions. The decision has clearly been taken by the legislators that that objective should override the injustice which may occur because a particular visa applicant, sometimes entirely without fault on that person's part, does not in fact receive that notice in a timely way (as in the case of Mr Singh) or in some cases (such as Dawai and Tabet) at all. Such persons may lose their right to seek review of a decision refusing a visa before they are aware that the decision has been made. However, once it is recognised that priority has been given to the fulfilment of that purpose, it is appropriate in the absence of any indication to the contrary to apply the clear words of reg 2.16(1)(c) which are consistent with it. 33 In our judgment, therefore, the use of registered mail is a means of sending by pre-paid post a notice of a decision in compliance with s 66(1) of the Act. Provided that the notice is addressed to the applicable address under s 53, that notice will have been sent to the last address of the visa applicant. That action will therefore fall within the scope of operation of reg 2.16(1)(c), whatever the precise process which Australia Post adopts to achieve delivery of that notice to the addressee or to the premises to which it is addressed. Accordingly, in our judgment, reg 5.03 did operate as the Tribunal concluded to deem the letter to have been received by Mr Singh by 24 September 1997 and his application for review by the Tribunal was out of time. In Re Minister for Immigration and Multicultural Affairs; Ex parte Radojicic (High Court of Australia, 21 January 2000, unreported), McHugh J declined to grant orders nisi in respect of a decision of the Tribunal made on 30 March 1999. His Honour's reasons indicate that his Honour would have reached the same conclusion on that question, although ultimately it was not necessary to do so in the particular circumstances, and effectively for the same reasons as expressed above. 34 It was argued that reg 2.16(1)(c) does not encompass sending by registered pre-paid post because there may be circumstances in which that process may be less efficient than sending by "regular" or ordinary pre-paid mail. For instance, it was argued, it is (or may be) the case that the intended recipient of the registered mail will receive a notice to attend the post office to collect that mail and may be unable to do so promptly. There may be cases where the intended recipient of the registered mail is unable to understand a card indicating the availability of an item of registered mail for collection. The point was also made that the time prescribed under reg 4.31(2)(a) within which an application for review may be brought by a visa applicant who is in immigration detention is only seven working days from the day that person is notified of the decision. Also, any process of registered mail collection would mean that in reality the available time from any deemed time of notification may be very short. Such considerations, if factually correct, might have the consequence in some circumstances, where registered mail is routinely delivered or collected, of slightly shortening the available time within which to seek review of a decision refusing a visa application than if the notice were given by ordinary pre-paid post. However, they are considerations which are not related to the circumstances confronting Mr Singh. He simply did not receive the letter sent to him by registered pre-paid post until considerably later than would routinely have been the case, apparently through post office error. Those considerations do not lead to the conclusion that the words in reg 2.16(1)(c) should not be given their ordinary meaning. They do not tend to inform the meaning of reg 2.16(1)(c), but rather draw attention to possible difficulties in the proper interaction of reg 5.03 as to the time the notice of decision is deemed to have been received and reg 4.31 as to the time within which any application for review under s 412(1) may be instituted. 35 In view of that conclusion, it is not necessary to consider the ground of appeal of the Minister that the findings of the learned judge at first instance as to the steps adopted by Australia Post in relation to registered mail were not warranted by the material before his Honour. 36 The contention by Mr Singh that reg 5.03 is invalid relies upon certain comments of Gyles J in Guo Heng Li. The visa applicant in that case had applied unsuccessfully to remain permanently in Australia under the Change in Circumstances (Residence) Class. The case concerned the ruling of the Immigration Review Tribunal ("the IRT") that the application for review of the decision of the delegate of the Minister was not made within the time prescribed by reg 4.10(1)(a)(ii) (as it then stood), that is within twenty-one days after notification of the decision. Section 347(1)(b) of the Act relates to reviews by the IRT, and is in similar but not identical terms to s 412(1)(b) of the Act which relates to reviews by the Tribunal. It provided that an application for review to the IRT must be made within the prescribed period, being a period ending not later than (relevantly) twenty-eight days after notification of the IRT reviewable decision. Regulation 5.03(1) was in its current form. 37 Notice of the decision was given to Guo Heng Li by letter dated 20 May 1998, and posted the following day. That letter was, however, addressed to the migration agent for Guo Heng Li and not to his residential address as provided to the Minister. The application for review was received by the IRT on 19 June 1998. The IRT took the view that, by reason of reg 5.03(1), the letter dated 20 May 1998 was taken to have been received on 27 May 1998 and the twenty-one day period prescribed by reg 4.10(1)(a)(ii) (as it then stood), therefore expired on 17 June 1998. Gyles J concluded, in the particular circumstances, that the letter of 20 May 1998 was not addressed to the applicant at the address provided by him under s 53, so reg 5.03 had no relevant role to play. The date of notification of the decision was the date of actual receipt by the applicant of the letter, and the application was therefore within time. 38 His Honour, in addition, made some observations about reg 5.03. He did not make those observations a ground of his decision, but he expressed quite firm views. He noted that if a document is sent on the seventh day after it is dated, it is taken to have been received on that same day provided it is sent to an address within Australia. As his Honour said, it is both common knowledge and common sense that the Australian postal services are not instantaneous. He also noted that s 29 of the Acts Interpretation Act 1901 (Cth) deems service to be in the ordinary course of post, and s 160 of the Evidence Act 1995 (Cth) gives rise to a presumption that delivery of mail will be the fourth working day after posting. In each case the presumption is rebuttable by contrary proof. His Honour then said (par 46):

"In my opinion, the description of the legislation in Austral Fisheries … is apt to describe the result of applying subregulations (1)(a) and (2) of reg 5.03. The result is not simply the possibility of some illogical or strange result depending upon the circumstances. It is the certainty of an absurd result if the notification is posted on the seventh day, as the regulation expressly contemplates. The inevitable result of that state of facts is that the applicant will simply not receive the prescribed number of days in which to make an application for review as required by s 347(1) and reg 4.10. Thus, another way of analysing the matter is to say that the delegated legislation is inconsistent with the legislation, and in particular with s 347(1)." His Honour concluded (par 50) that reg 5.03 is invalid, at least in so far as it operates in relation to the time limit imposed by s 347(1). The Minister has not submitted on this appeal that the considerations which arise in relation to that time limit are any different from those which arise in relation to the time limit imposed by s 412(1) of the Act and the periods prescribed by reg 4.31. 39 In Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 ("Austral Fisheries") Lockhart J said at 384:

"Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws." 40 That is the passage to which Gyles J referred in his reasons, together with a reference to the joint judgment of Beaumont and Hill JJ at 399-401 in the same case. 41 The prescription of time limits under s 412(1) of the Act within which to apply for review of a decision of the Minister refusing a visa application must accord with the purposes of the Act. In particular, it must provide an unsuccessful visa applicant with a meaningful opportunity to exercise the right of review granted by ss 411 and 414 of the Act. It may be assumed that the time limits prescribed by reg 4.31 do accord with those purposes. No submission to the contrary was put. It is, however, noteworthy that the time limits so prescribed, and which the Minister contends operate in conjunction with reg 5.03 to deem notification of the decision at a certain time, are absolute. There is no provision enabling any person, whether the Minister, the Tribunal or the Court, to vary or extend those time limits, even in cases where clearly no notification of the decision was received without any fault on the part of the visa applicant. 42 The topic which reg 5.03 addresses is one which may validly be addressed by regulation. Section 504(1)(e) of the Act empowers the making of regulations, not inconsistent with the Act, which make 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."

"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." That is a specific legislative authorisation for regulations deeming in certain circumstances a document to have been received at a specified or ascertainable time. It could not be argued that such a regulation is inconsistent with a provision of the Evidence Act, even in respect of proceedings in the Court, as s 504(3A) of the Act provides that the Evidence Act does not affect the operation of regulations made for the purposes of s 504(1)(e) of the Act. 43 To provide a meaningful opportunity to apply for review of such a decision of the Minister or his delegate, the time so prescribed under s 412(1) must be adequate to enable an unsuccessful visa applicant to be notified of the decision, to have an opportunity to consider the reasons for the decision to which, generally speaking, that person is entitled under s 66(2)(c), to determine whether to seek review of the decision, to prepare or have prepared the application for review and to give that application for review to the Tribunal, in accordance with s 412(1) of the Act. The visa applicant will not have instituted the application for review by giving it to the Tribunal until it is actually received by the Tribunal: reg 4.31(1). The application for review may be served upon the Tribunal by post, but is not taken to have been instituted until it is in fact received by the Tribunal. The time limits prescribed under s 412 must therefore be sufficient to accommodate that process. If they do not, they will not be consistent with the Act. They will not permit the right of review for which the Act provides. 44 It is apparent on the face of reg 5.03 that it is capable of operating to abridge the time limits prescribed by reg 4.31, and to do so in a way which might effectively render the right of review nugatory. That is because it operates so long as the document is sent within seven days after it is dated. It deems the date of receipt to be seven days after the date of the document. The date of receipt is determined by reference to the date of the document rather than the date it is sent. Thus, a document may be sent on the very day it is deemed to have been received. If the document is sent on the seventh day after it is dated, and it takes some time to be delivered (say, up to four working days: cp. s 160 of the Evidence Act), the period of time within which an application for review may be brought will have commenced to run will have effectively been shortened by the time it takes for the document to be received. It operates when the document is posted from any place in Australia to any other place in Australia. Of course, in most cases, that consequence will not in fact arise because the document will have been sent on or within a day or so of its date. But reg 5.03 provides for its operation to deem receipt seven days after the document is dated, whether it is sent on that day or any day within the next succeeding seven days. 45 In the case of a visa applicant who is in immigration detention, the time within which any application for review to the Tribunal may be brought is seven days from notification of the decision: reg 4.31(2)(a). If the notice of the decision is sent by pre-paid mail on the seventh day after the notice itself is dated, reg 5.03 provides that the notice is taken to have been received on that very day. The unsuccessful visa applicant, in those circumstances, would not have received the notice on the day it was posted. Effectively, therefore, reg 5.03 would operate in such circumstances to remove the right of review which the Act grants. 46 The period of seven days fixed by reg 4.31(1)(a) is very short. If the document was sent a few days after it was posted, and received in the ordinary way two or three days later, the deemed receipt date, being the date of the document, may have elapsed or there may be only a day or two left of the seven day period within which the right of review may be exercised. There might not be a period in which the right of review could be meaningfully exercised. Even if the document was posted on the day it was dated, in the ordinary course it will not be received for a day or two. Consequently the period fixed by reg 4.31(2)(b) will be effectively abridged by shortening the period between actual receipt and the date by which the review application must have been given to the Tribunal. 47 As noted above, because reg 4.31(4) requires that the Tribunal actually receive the review application before it is taken to have been given to the Tribunal, and the application for review may be posted to the Tribunal: reg 4.31(3)(a), the period prescribed must be sufficient to accommodate that step in the process of exercising the right of review. The inevitable shortening of the seven day period fixed by reg 4.31(2)(a) in respect of visa applications in immigration detention has the effect, in our judgment, of significantly diminishing the actual period allowed between actual notification of the decision of the Minister (in the ordinary course) and the time by which notice of the application for review must be given to the Tribunal. In some circumstances, it may mean that the right of review is lost before notice of the decision is received in the ordinary course. In some circumstances, it may mean that the time actually available between receipt of the notice of the decision and the time by which the Tribunal must be given notice of the application for review is so short that the right of review is, in a practical sense, meaningless or can only be met with very great and undue haste and inconvenience. 48 We do not consider that a regulation which has those effects in relation to the time limits imposed by reg 4.31 in accordance with s 412 is, in reality, a regulation which is consistent with the Act. It is not consistent with the existence of the right of review which ss 411 and 414 of the Act grants, albeit to be exercised within the time limits to be fixed by prescription (and so fixed by reg 4.31), to provide for circumstances where that right of review may in reality be non-existent or in practical terms be incapable or almost incapable of being properly exercised. 49 As Gyles J pointed out in Guo Heng Li, in the case of a visa applicant who is not in immigration detention, the operation of reg 5.03 may shorten the twenty-eight day period prescribed by reg 4.31(2)(b). It will do so, depending upon the number of days which pass between the date of the document constituting the notice of decision and when it is sent and also by the time which the course of mail takes. For example, if sent on the seventh day after it is dated and if the actual delivery date is four days after being sent (cp. s 160 of the Evidence Act), that twenty-eight day period will have been shortened by eleven days. It is proper to notice, also by way of example, that if sent on the day it is dated and with actual delivery four days later, the actual period available to give to the Tribunal notice of the review application will be three days longer than the twenty-eight days prescribed by reg 4.31(2)(b) because the deemed date of receipt under reg 5.03 is seven days after the date of the document. Gyles J also pointed out that reg 5.03 can produce the absurd result that the document, if sent on the seventh day after it is dated, is taken to have been received before that could possibly be the case. 50 Those considerations provide additional reasons why, in our judgment, reg 5.03 in its present form is not authorised by s 504(1)(e) of the Act in so far as it operates in respect of the time limits imposed by reg 4.31 under s 412(1) of the Act. It was not submitted that reg 5.03 could be read down in any consistent and workable way: Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65-66. 51 Accordingly, in our judgment, 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 consequence is that it cannot be relied upon in the present circumstances to deem the letter to have been received by 24 September 1997, so that the application for review to the Tribunal was out of time. The learned primary judge found that the presumption in s 29 of the Acts Interpretation Act 1901 (Cth) had been rebutted, and that the letter was not received by Mr Singh only shortly before the application for review was given to the Tribunal, so that it was within the time fixed by reg 4.31(1)(b). We agree that, upon that finding, the application to the Tribunal was within time and the Tribunal should have proceeded to hear and determine the application on the merits. 52 In our judgment, the appeal should be dismissed with costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor and the Honourable Justice Mansfield.

REASONS FOR JUDGMENT TAMBERLIN J: 53 In this matter, with the exception of the conclusion of their Honours as to the validity of reg 5.03 of the Migration Regulations ("the Regulations"), I am in agreement with the reasons and conclusions of O'Connor and Mansfield JJ. However while I see some force in the considerations discussed by their Honours in their reasons for judgment, I do not agree that reg 5.03 is invalid or ultra vires. 54 A useful starting point for a consideration of whether delegated legislation is invalid is the judgment of Dixon J in King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 where his Honour said at 195 : "I am unaware of any principle of law or of interpretation which places upon a power of subordinate legislation conferred upon the Governor-General by the Parliament a limitation or condition making either reasonableness or certainty indispensable to its valid exercise." 55 The availability of unreasonableness as a ground of invalidity in relation for subordinate legislation was considered by Diplock LJ in Mixnam's Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214 at 237-238 where his Honour said:

"The various special grounds upon which subordinate legislation has sometimes been said to be void - for example, because it is unreasonable; because it is uncertain; because it is repugnant to the general law or to some other statute - can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid must be shown to be within the powers conferred by the statute. Thus, the kind of unreasonableness which invalidates a by-law is not the antonym of 'reasonableness' in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires' …" 56 This statement was followed by Lockhart J in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 referred to in the judgment of O'Connor and Mansfield JJ. Mixnam's Properties was affirmed on appeal: see [1965] AC 735. 57 Other observations which bear on unreasonableness as a ground of invalidity are to be found in Kruse v Johnson [1898] 2 QB 91 at 99; Ferrier v Wilson (1906) 4 CLR 785 at 801-802 and Williams v Melbourne Corporation (1933) 49 CLR 142 at 149-150. 58 In the Austral Fisheries case the Full Federal Court held that by reason of the incorporation in a plan of fisheries management of a formula for the allocation of fishing quotas based on a statistical fallacy, which therefore operated to produce an absurd result, the plan was beyond power on the ground that it was so capricious and irrational that no reasonable person could ever have devised it. The circumstances in that case, however, are far different from those in the present case. 59 In Bienke v Minister for Primary Industries and Energy (1996) 135 ALR 128 at 137-139 the Full Federal Court again considered the question of unreasonableness in relation to fisheries legislation. The Court there referred to the views of various members of the High Court to the effect that delegated legislation may be struck down even if the purpose of the law is to achieve an end within power if the means adopted is not capable of being considered to be reasonably proportionate to the pursuit of that end. The Federal Court referred to Davis v Commonwealth (1988) 166 CLR 79 at 100; South Australia v Tanner (1989) 166 CLR 161 at 165, and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 30. 60 In Tanner's case the observations as to proportionality expressed by Wilson, Dawson, Toohey and Gaudron JJ were in these terms, at 165: "In the course of argument, the parties accepted the reasonable proportionality test of validity … namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose. However, they differed in the answers to which their application of the test led." 61 In the Nationwide News case Mason CJ (at 30-31) regarded Davis as establishing two propositions namely: "First, that, even if the purpose of a law is to achieve an end within power, it will not fall within the scope of what is incidental to the substantive power unless it is reasonably and appropriately adapted to the pursuit of an end within power, ie, unless it is capable of being considered to be reasonably proportionate to the pursuit of that end. … Secondly, in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object". (Emphasis added) 62 See also the views of Gaudron J and McHugh J at 93-94 and 101. 63 In the present case the regulation is clearly directed to achieve certainty as to time of service. The consideration that in some circumstances reg 5.03 could operate to deprive an applicant of a right to make an application does not mean, in my view, that the regulation is so unreasonable that it can be said to lead to arbitrariness or in injustice to such a degree that it is outside the scope of what Parliament intended when authorising the making of the regulation. The evident purpose of Parliament was to achieve certainty as to the running of time and the time of service. 64 There is some difficulty in attributing an intention to the legislature that the Migration Act (1958) would not cause hardship in some circumstances. Section 53(3) of the Migration Act (1958) specifically envisages that a notification is to be taken to have been received even if in fact it was not received. This provides an indication of the importance placed by the legislature on certainty. This purpose of achieving certainty is a legitimate legislative purpose particularly in the area of migration law where it may be difficult to effect service or to ascertain the precise time at which notification to an applicant takes place. Applicants can be transitory and difficult to locate or contact both as to residence and place of employment and they may change their address from time to time without notification. Furthermore, the Court in the present case should not in my view conclude that the regulation goes beyond what could be considered reasonably necessary by legislative authorities to achieve the objective of fixing the date from which time runs. It is a "deeming" provision and these provisions are often discordant with what in fact happens. That is the reason they are enacted. Orders are frequently made for substituted service of process for documents where in fact documents may not come to the attention of parties. Circumstances may sometimes arise where the Official Notices section of a Newspaper or a publication in a Government Gazette will almost certainly not come to the attention of a party. Yet the party may be deemed to have been served. In making a general regulation of the present type the identifiable policy is to have a general rule to apply across a broad range of circumstances in order to give definition to the periods from which time begins to run. The regulation is directed to the legitimate object of certainty and any adverse consequences which may arise are not such as can be properly described as inappropriate or disproportionate or unrelated to that object. Nor can the regulation be said to be so manifestly arbitrary or unreasonable as to be ultra vires or invalid. It is evident that the provision may operate partially and unfairly in some circumstances. This is a matter which may warrant further consideration by the Minister or Parliament but it is not a basis for the Court striking down the regulation on the ground of invalidity for unreasonableness, arbitrariness or lack of proportionality. 65 For the above reasons in my view the appeal should be allowed. The orders made by Einfeld J should be set aside and the application for review before his Honour should be dismissed. The respondent should pay the Minister's costs both of the appeal of the hearing below. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Counsel for the Appellant: P Roberts SC and R Beech-Jones

Solicitors for the Appellant: Australian Government Solicitor

Evidence Act 1995(Cth)ss 4, 160, 160(1)

Migration Act 1958(Cth)ss 53, 53(1), 53(3), 53(4), 66, 66(1), 66(2)(c), 347(1)(b), 411, 412, 412(1)(b), 414, 504(3A), 504(1)(e)

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