Singh v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant Mr Daljeet Singh was refused a protection visa. The last day for lodging an application for review to the Refugee Review Tribunal (RRT) was Wednesday 24 March 1999. On the preceding Friday, 19 March, he took to the office of the Department of Immigration and Multicultural Affairs in Hobart a correctly completed application form in an envelope correctly addressed to the RRT at its Sydney office. An officer of the Department took the application and gave Mr Singh an official receipt stating that it was received "on behalf of" the RRT and would be sent "by internal bag to Sydney office". 2 Mr Singh's application was forwarded by the Hobart office of the Department via Canberra and did not reach the Sydney office of the RRT until 26 March. On 3 May 1999 the RRT ruled that it did not have jurisdiction to review the refusal decision.

Factual background 3 Mr Singh's language is Punjabi. He speaks no English. He came to Australia on 25 December 1998 on a visitor visa. On 19 January 1999 he applied for a protection visa. He has not been in immigration detention. His application was refused by a delegate of the Minister on 17 February. On that date a letter advising of the refusal was sent by the Department to Mr Singh at an address in Hornsby, New South Wales. The letter stated, amongst other things, "You may apply to the Refugee Review Tribunal (RRT) for review of the refusal to grant you a Protection Visa (866) …. If you decide to apply for review, you must lodge your application with the RRT within 35 days of the date of this letter." 4 The letter enclosed an RRT brochure dated May 1997. The brochure, which is only in English, provides information about the RRT and its procedures. Under the heading "When must I make my application for review?" the brochure states: "APPLY AS SOON AS YOU CAN. THE TRIBUNAL CANNOT EXTEND THE APPLICATION PERIOD. If you are not in immigration detention The Tribunal must get your application within 35 calendar days of the date of the letter from the Department of Immigration and Multicultural Affairs telling you of the decision …." 5 Under the heading "Where must I send my application?" it is stated: "If you live in Victoria, please give your application to the Melbourne office of the Tribunal. If you live elsewhere in Australia, please give your application to the Sydney office of the Tribunal. You may hand-deliver, post or fax the application to the Tribunal. The addresses and numbers are listed on the back of this pamphlet." The offices of the Tribunal are open from 9.30 am to 4.30 pm Monday to Friday, except public holidays." 6 On the back of the brochure the addresses and postal addresses of offices of the RRT in Sydney and Melbourne are given, together with telephone and fax numbers. 7 On a date which does not emerge in the evidence, the Department's letter reached Mr Singh. He had moved to Tasmania and was living in Lenah Valley and working at an Indian restaurant in Hobart. He prepared an application for review and put it in an envelope correctly addressed to the RRT's Sydney office. It is reasonable to infer that in doing this he was assisted by an English speaking friend. On Friday 19 March, in the company of a friend Mr Harbinder Singh (who is now back in India), Mr Singh set off for the Hobart Post Office to post his application. On the way he went to the office of the Department in Hobart to enquire about visa conditions stamped on his passport. An officer at the front counter told him that "the visa stamp is fine and I can take this letter if you have come to give this also". Mr Singh's friend told the officer that Mr Singh was going to post the letter to the RRT for a review of the decision not granting a protection visa. The officer said that the Department could take and forward the correspondence on behalf of the RRT. She assured Mr Singh (through his friend) that the Department could send the correspondence to the RRT by internal mail. Mr Singh's friend told the officer that the application was urgent because the expiry date for review was 24 March. The officer gave Mr Singh a receipt. Mr Singh deposed: "11. I left the letter with the DIMA officer, believing that it may be as [sic] a matter of routine to take the application on behalf of RRT. 12. At the first place [sic], I had no intention of leaving my application with DIMA Hobart, it became irrefutable [sic] that it was o.k. for the officer to take my application. At the time of giving the receipt she stressed that 'yes, we do it all the time'." 8 The receipt was in these terms (the italicised parts being in the handwriting of the officer who spoke with Mr Singh): [Logo] DEPARTMENT OF IMMIGRATION, LOCAL GOVERNMENT & ETHNIC AFFAIRS DOCUMENT RECEIPT Name: Daljeet Singh Document Type/Number: On behalf of RRT. Will send by internal bag to Sydney office. THIS WILL NOT be held in the Hobart Office ……..[Sgd]..…… 19/03/99 Officer Date N/A Above Document - Posted/Collected White sheet to Client. Pink sheet P.A. on File Yellow sheet Book Copy 9 Mr Singh kept the receipt and did not discuss the matter further with his solicitors. 10 The officer in question was Ms Maria Duharte. She is an Administrative Services Officer Grade 3 who has been employed with the Department since 1991. She speaks English and Spanish. She has worked in the counter area of the Hobart Office since November 1995. She recognised the handwriting on the receipt as her own. She deposed that she did not recollect the events of that date nor the receipting of those particular documents with any degree of certainty due to the passage of time and the fact that she sees so many people whilst working in the counter area. But she believed that she could "vaguely recall" the circumstances. She deposed that the fact that she had written the words "WILL NOT" in capitals and with underlining "strongly suggests to me that I was uncomfortable and unwilling to accept these documents and did so only with a large degree of reluctance. I can only assume that the Applicant must have been insistent." 11 She deposed that her usual practice was to state to clients who present documents in such a manner that such documents were "not validly lodged". Further, it was not her usual practice to discuss technical issues such as visa conditions, legislation or appeals to the RRT with a friend of an applicant. Her usual practice was to use the telephone based translation service. She "strongly doubt(ed)" the allegation that she allowed Mr Singh's friend to be the translator. 12 The practice in the office at the time was to send internal mail by Ansett air freight bag to the Department's head office in Canberra every Wednesday and Friday for distribution. The mail bag left the office at about 3.30 pm on those days. There was no evidence as to the time when Mr Singh gave Ms Duharte his application. The front counter closed at 4.00 pm so it is conceivable the Friday bag had already left. Even if the application caught the Friday bag, there would obviously be a real risk that the time taken to handle the document in Canberra and onforward it to Sydney would result in it missing the following Wednesday's deadline. The receipt was quite misleading in saying that the application would be sent "to Sydney office" and saying nothing of the detour via Canberra. 13 Ms Duharte deposed: "13. Prior to March this year I knew that it was not appropriate for various reasons to forward documents to the RRT on behalf of others. I knew this because of my training and my years of experience in the Department together with my perusal of frequent e-mails from our central office advising not to do this. 14. I have been aware for a long time that the Department does not have any agency arrangement with the RRT. I am also well aware that the Department does not hold itself out to be agents of the RRT. 15. I believe that for the above reasons that I was reluctant to receipt these documents and can only assume that I did so on the insistence of the applicant." None of the "frequent e-mails" were produced. 14 In cross-examination she said she received documents in the daily routine of her work. These documents included visa applications and other documents pertaining to applications that "we" (which I take to mean the Hobart office of the Department) may be holding. She said that the Hobart office also takes documents on behalf of the Translating and Interpreting Service. That is a body which is part of the Department but had moved to Melbourne. Her evidence continued: "Q. You said that you accept the documents; are there any instructions to accept certain documents? A. There are guidelines. Q. When you say 'guidelines', can you explain, please? A. Are we talking about documents specifically? For personal documents, that is documents that are going in to files for application we give a receipt, a handwritten receipt. Q. So that is the procedure to accept documents from that client, you take the documents and you issue a handwritten receipt? A. Yes, for personal documents. Q. Yes. And you have two types of receipts, as you mentioned before? A. We have an electronic receipt if we take money; we have a handwritten receipt if we take personal documents. Q. Does the handwritten receipt show that this is issued only when a client insists? A. It is issued only when clients hand in personal documents." 15 She said that she did not recall the incident with Mr Singh with clarity. She did not believe that she would have accepted the document readily and "I can only assume that I was being, you know, that the client was being very affirmative [sic] in me taking the application and that is why I have done it." 16 An affidavit was sworn by Mr Robert George who is the acting State Director in the Hobart office of the Department. He deposed that the Department and its Hobart office had no arrangement or understanding with the RRT to act as its agents for any purpose and that the Hobart office "has a standing instruction to this effect and staff employed in the Hobart office have been instructed in this regard". If that "standing instruction" was in written form, no document was produced.