Mohammad v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 Section 486 of the Migration Act 1958 (Cth) ("the Act") confers on this Court jurisdiction with respect to "judicially-reviewable decisions". Among the decisions which are reviewable by this Court in the exercise of that jurisdiction are decisions of the Refugee Review Tribunal ("the Tribunal"): see par 475(1)(b) of the Act. 2 In this proceeding, Mr Elias Kanchan Mohammad seeks review of a decision made by the Tribunal on 25 August 1999. 3 I begin by setting out the background to the making of that decision. 4 On 9 February 1997, Mr Mohammad, a Bangladeshi citizen, arrived in Australia. On 7 March 1997, he applied to the Minister for Immigration and Ethnic Affairs (as the office was then called; now, "Ethnic" is replaced by "Multicultural") ("the Minister") for a "protection" visa (see s 36 of the Act and Part 866 of Sch 2 to the Migration Regulations 1994 (Cth) ("the Regulations")). 5 On 8 April 1997, a delegate of the Minister ("the delegate") refused Mr Mohammad's application and, on 1 May 1997, Mr Mohammad sought review by the Tribunal of that decision. In his application to the Tribunal for review, Mr Mohammad gave 9/18 Evans Avenue, Eastlakes, New South Wales, both as his home address and as his address for service. He said also in his application that he wanted copies of correspondence to him from the Tribunal to go to a named solicitor who was acting for him on the application. 6 On 3 November 1998, the Tribunal affirmed the delegate's decision and Mr Mohammad sought review by this Court of the Tribunal's decision. 7 It is common ground between the parties to the present proceeding that, while his application to this Court for review of the Tribunal's decision of 3 November 1998 was pending, Mr Mohammad changed his address in Eastlakes from 9/18 Evans Avenue to 18/37 Mascot Drive and that this Court was aware of Mr Mohammad's changed address, as was the Minister's solicitor. (So much appears from the Court's file relating to Mr Mohammad's application to it.) However, it is also plain, so far as the evidence goes, that Mr Mohammad did not inform the Tribunal itself of his change of address. 8 On 28 April 1999, Moore J set aside the Tribunal's decision of 3 November 1998 for reasons which are not relevant to the present proceeding (see Mohammad v Minister for Immigration & Multicultural Affairs [1999] FCA 508 (unreported)) and remitted to the Tribunal for further hearing Mr Mohammad's application to it for review of the delegate's decision. 9 Then, on 23 June 1999, the Tribunal addressed a letter to Mr Mohammad at the Evans Avenue address (the only address of his which he had ever given to it) and sent it that day by registered post. The letter invited him to appear before the Tribunal on 23 July 1999 for a further hearing by it of his application for review of the delegate's decision. It is not disputed that Mr Mohammad neither received that letter in fact nor even became aware of its existence until some considerable time after 23 July 1999. Obviously, Mr Mohammad did not act on the invitation given in the letter. 10 (I should add here that, also on 23 June 1999, the Tribunal copied the letter which it had addressed to Mr Mohammad to the solicitor named in Mr Mohammad's application to it, as Mr Mohammad had requested in that application. That copy letter was replied to by the solicitor by letter dated 29 June 1999. In his reply, the solicitor stated that he no longer acted for Mr Mohammad and requested that "you send your letter to Mr Mohammad at his last known residential address", something which the Tribunal had, of course, already done. It would have been apparent to the solicitor on reading the copy letter sent to him that the original of it had been addressed to Mr Mohammad at the Evans Avenue address. However, it appears unlikely that the solicitor would have been aware that that was no longer Mr Mohammad's address, since the solicitor had probably ceased to act for Mr Mohammad before the latter's departure from that address. Certainly, the solicitor had not acted for Mr Mohammad in the latter's proceeding seeking review by this Court of the Tribunal's decision of 3 November 1998, during the course of which proceeding Mr Mohammad had changed his address; Mr Mohammad had not been legally represented in that proceeding.) 11 On 25 August 1999, the Tribunal again affirmed the delegate's decision, the proposed hearing of 23 July 1999 obviously not having taken place. 12 It is the decision of the Tribunal of 25 August 1999 of which Mr Mohammad seeks review in the present proceeding. His application to this Court (on which he is again not legally represented) is based, in substance, on his not having received in fact or even become aware of the existence of the Tribunal's letter of 23 June 1999 until some time after the Tribunal's decision of 25 August 1999 was made. 13 It is convenient to refer immediately to the provisions of both the Act and the Regulations relevant to a consideration of Mr Mohammad's attack on the Tribunal's decision of 25 August 1999. 14 On 1 June 1999, Sch 3 to the Migration Legislation Amendment Act (No. 1) 1998 (Cth) ("the amending Act") commenced: see subs 2(2) of the amending Act and Gazette No S51, 5 February 1999. Item 3 of Sch 3 to the amending Act relevantly repealed the existing s 425 of the Act and substituted for it a new s 425, as well as adding to the Act a new s 425A. Item 12 of Sch 3 to the amending Act added to the Act a new s 441A. Subitem 20(1) of Sch 3 to the amending Act provided relevantly that the new ss 425, 425A and 441A of the Act applied to an application made under s 412 of the Act for review of a decision reviewable by the Tribunal if the application was made before 1 June 1999 and the review was not completed under s 414 of the Act before that date. 15 (I should say now that, since Mr Mohammad's application was of the type described in subitem 20(1) of Sch 3 to the amending Act, the new ss 425, 425A and 441A of the Act, when they commenced, applied to his application.) 16 Subsection 425(1) of the Act provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 17 Subsection 425A(1) of the Act provides, "If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear." It is apparent that the giving by the Tribunal of the notice referred to in that provision was intended simultaneously to satisfy the Tribunal's obligation under subs 425(1) of the Act. 18 The first sentence of subs 425A(2) of the Act provides, "The notice must be given to the applicant by one of the methods specified in section 441A". 19 Subsection 441A(3) of the Act specifies certain types of documents, including, in par (c), a notice under s 425A of the Act. (I note, incidentally, that, while subs 441A(3) of the Act specifies two other types of invitation, it does not specify an invitation under s 425 of the Act, which reinforces the conclusion which I have expressed above that the giving by the Tribunal of the notice required to be given under subs 425A(1) of the Act was intended simultaneously to satisfy the Tribunal's obligation under subs 425(1) of the Act.) 20 Subsection 441A(1) of the Act provides, "(1) A document specified in subsection (3) is taken to be duly given to an applicant for review if: (a) the document is sent (physically, electronically or otherwise) to: (i) the last address for service provided by the applicant in connection with his or her application for review; or (ii) the last residential address provided by the applicant in connection with his or her application for review…." 21 Subsection 425A(3) of the Act provides relevantly, "The period of notice given must be at least the prescribed period". 22 Regulation 4.35D of the Regulations prescribes the period which subs 425A(3) of the Act contemplates will be prescribed. That regulation provides relevantly that, for subs 425A(3) of the Act, the prescribed period starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of fourteen days after the day on which the notice is received. 23 The notion of the applicant's receiving notice, referred to in reg 4.35D of the Regulations, is dealt with in reg 5.03 of the Regulations. 24 Regulation 5.03 of the Regulations provides relevantly: "(1A) This regulation applies to a document sent by … a Tribunal to a person in that person's capacity as: (a) an applicant, of any kind, under the Act…. (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 …: (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." 25 There is no dispute in the present proceeding as to whether the Tribunal's letter of 23 June 1999 contained an invitation of the type referred to in subs 425(1) of the Act or contained the information required by subs 425A(1) of the Act. There is, however, a question as to whether subs 441A(1) of the Act operated in the present circumstances to take to have been duly given by the Tribunal to Mr Mohammad the notice required to be given by subs 425A(1) of the Act. 26 There is also no dispute in the present proceeding as to whether the Tribunal's letter of 23 June 1999 was sent within seven days of its date. There is also a further question, however, as to whether subreg 5.03(1) of the Regulations operated in the present circumstances to take to have been received by Mr Mohammad from the Tribunal on 30 June 1999 its letter of 23 June 1999, so that the period of notice given in that letter was at least the prescribed period of notice required to be given by subs 425A(3) of the Act. 27 Prima facie, the form of both subs 441A(1) of the Act and subreg 5.03(1) of the Regulations requires an affirmative answer to both of those questions. 28 First, so far as subs 441A(1) of the Act is concerned, it appears that the notice under subs 425A(1) of the Act was sent to the last address, both "for service" and "residential", provided by Mr Mohammad to the Tribunal in connection with his application for review by it, so that that notice is taken to have been duly given to him by it. 29 Secondly, so far subreg 5.03(1) of the Regulations is concerned, it appears that the notice under subs 425A(1) of the Act was sent to Mr Mohammad at the address to which I have just referred within seven days after its date, so that it is taken to have been received by him at that address seven days after its date and the period of notice given was thus at least the prescribed period of notice required to be given by subs 425A(3) of the Act. 30 However, at the time at which Mr Mohammad's application to this Court was argued before me, there existed a decision of a single Judge of this Court which might have justified a negative answer to the two questions to which I have referred above, because of the Tribunal's use of registered post to send its invitation to Mr Mohammad to appear before it. However, there had been an appeal from that decision, which appeal had already been argued before a Full Court of this Court and in which judgment was expected relatively shortly. I therefore determined to postpone deciding Mr Mohammad's application to this Court until the Full Court's decision on that appeal became available, in order to see whether the Full Court's decision about the effect of the use of registered post in the migration area should cause me to give a negative answer to the two questions to which I have referred above. 31 The Full Court's decision has now become available, the appeal concerned being Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377 (O'Connor, Tamberlin and Mansfield JJ, 4 April 2000, unreported). 32 The "principle" [sic] issue raised on that appeal (see the joint reasons for judgment of O'Connor and Mansfield JJ at [21]) and the only one which, at the time of hearing argument on Mr Mohammad's application to this Court, I had been informed by the Minister that the appeal raised, was, in substance, as follows: can a document addressed to a particular street address be said, for the purposes of the migration legislation, to be sent to that street address when it is sent by registered post, on the assumption that there exists a practice on the part of Australia Post of not delivering such documents to that street address, but rather of retaining them at the nearest post office to that street address and then sending a notice to the intended recipient of the document at that street address, requiring the recipient to collect the document at that post office? 33 That question was unanimously answered in the affirmative by the Full Court: see, in particular, the joint reasons for judgment of O'Connor and Mansfield JJ at [33] and the reasons for judgment of Tamberlin J at [53]. 34 Such an answer appears to confirm the correctness of my prima facie answers to both of the questions to which I have referred above. 35 However, as well as the "registered post" issue, about which I was told by the Minister at the hearing of Mr Mohammad's application, it now transpires that there was a further issue raised in the Singh appeal, namely, whether reg 5.03 of the Regulations was valid. As to that issue, O'Connor and Mansfield JJ held, Tamberlin J dissenting, that reg 5.03 of the Regulations was invalid, at least in so far as it purported to operate in respect of a notification to an applicant for a visa that his or her visa application has been refused. 36 Essential to the majority's reasoning in that respect was the conclusion that reg 5.03 of the Regulations, in so far as it purported to operate in respect of a notification to an applicant for a visa that his or her visa application has been refused, was "[in]consistent with the Act" (see at [48]). It was inconsistent with the Act because it had the effect, if it operated in respect of such a notification given to a visa applicant who was in immigration detention, that the right, conferred on such a person by the Act, of Tribunal review of the refusal decision "may in reality be non-existent or in practical terms be incapable or almost incapable of being properly exercised" (also at [48]). That, in turn, was because a visa applicant who was in immigration detention had to give to the Tribunal any application for review of the refusal decision within a period beginning on the day on which the applicant was notified of the refusal decision and ending at the end of seven working days (beginning with the first working day that occurred on or after that day): see reg 4.31 of the Regulations. 37 However, the majority, as well as adverting to the effect of reg 5.03 of the Regulations on the review rights of visa applicants who were in immigration detention, also adverted to its effect on the review rights of visa applicants who were not in immigration detention. In doing so, the majority referred to certain observations in the reasons for judgment of Gyles J in Guo Heng Li v Minister for Immigration & Multicultural Affairs [1999] FCA 1147 (3 September 1999, unreported), acknowledging (at [38]) that Gyles J had not made those observations a ground of his decision. The majority said (at [49]-[50]), "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) [for the seeking by a person not in immigration detention of Tribunal review of a decision refusing a visa application]. 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 ['upon' was meant] 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 [1995 (Cth)], 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." 38 If it were simply a matter of my choosing between the competing views expressed by the majority and minority in Singh as to the validity of reg 5.03 of the Regulations, in so far as it purported to operate in respect of a notification to an applicant for a visa that his or her visa application has been refused, my preference would be for the minority view. However, I do not have the luxury of such choice and I must therefore decide whether the majority view that reg 5.03 of the Regulations was invalid, in so far as it purported to operate in respect of a notification to an applicant for a visa that his or her visa application has been refused, is fairly applicable also to the type of notification involved in the present case, one of the day on which an applicant for review by the Tribunal is scheduled to appear before it to give evidence and present arguments. In reaching that decision, I must, of course, resist any temptation to be overzealous in finding reasons to distinguish between the two types of notification, simply in order to confine the effect of a decision with which I admittedly disagree. 39 I conclude that the majority view in Singh is fairly applicable to the type of notification involved in the present case. Those matters which were pointed out by Gyles J in Guo in respect of notifications of adverse decisions to visa applicants who are not in immigration detention are, it appears to me, equally applicable to the present type of notification and were described by the majority in Singh as "additional reasons" why reg 5.03 was invalid, in so far as it purported to operate with respect to notification to applicants for visas that their visa applications have been refused. 40 Just as in the case of notification of adverse visa decisions, the operation of reg 5.03 of the Regulations in the case of invitations to appear before the Tribunal may shorten beyond the period prescribed in the Regulations the period of notice which a person actually has as to the necessity for him or her to take some important step. In the first class of case, that step is to seek review of the decision; in the second class of case, it is to appear before the Tribunal on such review. Further, just as in the case of notification of adverse visa decisions, the operation of reg 5.03 of the Regulations in the case of invitations to appear before the Tribunal could produce the result, implicitly accepted by the majority in Singh to be "absurd", that the notice, if sent on the seventh day after it is dated, is taken to have been received before that could possibly be the case. 41 If those matters were significant indicators of invalidity of reg 5.03 of the Regulations, in so far as it purported to operate with respect to notification of decisions to refuse visa applications, as the majority in Singh thought them to be, they must equally be significant indicators of invalidity of reg 5.03 of the Regulations, in so far as it purports to operate with respect to invitations to applicants to appear before the Tribunal. 42 Accepting, therefore, that I am compelled by Singh to conclude that reg 5.03 of the Regulations is invalid, in so far as it purports to operate with respect to invitations to applicants to appear before the Tribunal, it is apparent that the Tribunal in the present matter did not give to Mr Mohammad the prescribed period of notice required by subs 425A(3) of the Act. It did not do so, because that period could only begin, pursuant to reg 4.35D of the Regulations, when Mr Mohammad had received notice of an invitation to appear before the Tribunal and it is accepted by the Minister that Mr Mohammad did not receive such notice before the scheduled day for his appearance, so that the required period of notice never began to run. 43 In the circumstances, the Tribunal's decision of 25 August 1999 must be set aside and, yet again, Mr Mohammad's application to the Tribunal for review of the Minister's delegate's decision of 8 November 1997 must be referred to the Tribunal for further consideration. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.