Singh v Minister for Immigration & Multicultural Affairs

O'CONNOR & MANSFIELD JJ: 1 This is an appeal from a decision of Hill J given on 20 April 1999 refusing to make an order for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 2 October 1998. The Tribunal decided that it did not have jurisdiction to hear on the merits an application for review of a decision of a delegate of the respondent made on 6 February 1998. The respondent's delegate had rejected the appellant's application for a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act"). 2 The appellant is a national of India who arrived in Australia on 14 November 1997. He applied for a protection visa on 12 December 1997 because he claimed to be a person to whom Australia had protection obligations under the provisions of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). 3 On his application for a protection visa, and pursuant to s 53 of the Act, the appellant provided his current residential address as 71 South Road Braybrook Victoria 3019, and he indicated that that was the address where he wanted correspondence to be sent to him. 4 Section 66(1) of the Act requires the respondent to notify a visa applicant of the decision made on an application for a visa under the Act. By letter dated and posted on 6 February 1998, the appellant was sent a notice of the decision rejecting his application. Enclosed with that letter was a record of the reasons for that decision. That letter was addressed to 71 South Road Braybrook Victoria 3019, that being the address given on the appellant's application. The letter was also sent to his migration agent. The address given by the appellant was in fact the address of a friend, where he had been staying. He was away at the time the letter was sent. As a result, the letter did not promptly come to his attention. 5 The letter was sent by registered mail. The wife of the appellant's friend picked up the registered letter soon after it was posted. She then, however, misplaced it. The copy of the letter forwarded to the appellant's migration agent appears also to have been mislaid, but nothing turns on that point. 6 There is no suggestion that the appellant was in any way at fault in not receiving the letter promptly, or that he then knew about either the letter or the copy sent to his migration agent. He first learned about the decision when the migration agent sent to his address a newsletter with a note on the back stating that he had overstayed his visa, and requesting that a friend call the migration agent. He then learned that his visa application had been refused. 7 The appellant then promptly applied for review of the decision to the Tribunal. By reason of the operation of s 412(1)(b) and reg 4.31 of the Migration Regulations ("the Regulations"), the Tribunal ruled that the application had been lodged outside the twenty-eight day time limit prescribed. It found that the letter had been posted on 6 February 1998 by registered mail. It applied reg 5.03 of the Regulations to decide that the letter must be taken to have been received by the appellant on 13 February 1998. The twenty-eight day period within which the review application was required to have been lodged therefore expired on 13 March 1998. The application for review was not made until 28 May 1998, well after that prescribed period had expired. 8 Hill J firstly followed the line of decisions considered and followed by Sackville J in Shrestha v Minister for Immigration and Multicultural Affairs (13 October 1997, unreported) including Dawai v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 379; Santos v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 334; Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446. Those cases decided that the time limits prescribed under s 412(1)(b) and reg 4.31 are mandatory, so that an application for review lodged out of time was incompetent, and that the time at which an applicant is deemed to have been notified of a decision is seven days after the date of the letter, if it is posted in accordance with reg 5.03. His Honour therefore affirmed the decision of the Tribunal that the application for review was out of time, and that it was not open to the appellant to argue that he was not in fact notified of the decision of the delegate of the respondent until shortly before 28 May 1998, even though that was in fact the case. 9 His Honour also rejected the argument based upon s 420 of the Act. It was argued that the obligation of the Tribunal to act according to substantial justice and the merits of the case should be read, together with ss 412 and 414, to confer upon the Tribunal a discretion to extend the time limits specified in s 412 and reg 4.31 where it is necessary to do so to accord an applicant for review substantial justice. His Honour ruled that s 420 only comes into operation once there is a valid application for review. 10 This appeal does not directly challenge either of those rulings. It arises in the following circumstances. On 17 August 1999, the appellant sought an extension of time within which to file and serve a notice of appeal from the decision of Hill J given on 20 April 1999. The matter which was sought to be ventilated on appeal was that which formed the basis of the decision of the Court in Harinder Pal Singh v Minister for Immigration & Multicultural Affairs ("Harinder Pal Singh") [1999] FCA 613 given on 11 May 1999. That decision had only recently come to the appellant's attention. The effect of that decision was that, because a letter was sent by registered post, it was not sent to the applicant but to the post office nearest to where the applicant resided or gave as his address, so that r 5.03 was not activated. The consequence was, as found in that case, that s 29 of the Acts Interpretation Act 1901 (Cth) came into play. Section 29 provided for a rebuttable presumption that correspondence was delivered in the ordinary course of mail. It was sought to establish (as had been found) that that presumption had been rebutted by the evidence that the applicant had in fact only received notification of the delegate's decision shortly before 28 May 1998. 11 On 2 September 1999, Hely J granted the extension of time to file and serve a notice of appeal from the decision of Hill J, but limited to that point. 12 The matter in issue is therefore the same matter which has been argued before the Full Court as presently constituted in Harinder Pal Singh, as an appeal was brought by the Minister for Immigration and Multicultural Affairs from that decision. The Court delivered judgment in that matter on 4 April 2000 allowing that appeal. It determined that sending a letter by registered mail, provided the letter itself complies with the requirements of s 66 of the Act in terms of content, does constitute sending that letter pursuant to reg 5.03 if it is sent to the address provided under s 53. In view of the findings of fact recorded above, that means that the appellant was deemed to have received that letter on 13 February 1998. That becomes the date on which he was notified of the decision for the purposes of the Act. Pursuant to s 412(1)(b) and reg 4.31 of the Regulations, the appellant's review application to the Tribunal was therefore required to have been lodged on 13 March 1998. It was out of time. 13 There is no discretion in the Tribunal to extend that time. Nor indeed is there any discretion in the Minister for Immigration and Multicultural Affairs, or the Court, to do so. That circumstance has the potential to cause considerable injustice. It is an injustice which the Court has remarked upon in a number of decisions, including those referred to above. 14 As the leave granted by Hely J did not extend to arguing that reg 5.03 was itself invalid, that matter was not initially argued on this appeal. The Court has also addressed that matter in the appeal in Harinder Pal Singh. As appears from our reasons for judgment in that matter, we reached the conclusion that reg 5.03 is invalid in so far as it operates in respect of the time limits imposed by reg 4.31 pursuant to s 412(1) of the Act. 15 In light of the decision of the Court in Harinder Pal Singh, the appellant sought leave to further amend the notice of appeal to raise the issue of the validity of reg 5.03 of the Migration Regulations. In the circumstances, the respondent very properly did not oppose that leave being given, and leave was given accordingly. The respondent maintained, however, that reg 5.03 was valid. He invited the Court to reconsider its decision in Harinder Pal Singh. For reasons given this day, the Court declined to do so. 16 In accordance with the decision of the Court in Harinder Pal Singh, we also allow this appeal on the ground that reg 5.03 is not a valid exercise of the regulation making power in s 504(1)(e) of the Act in so far as it purports to operate in these circumstances. We would remit to the Tribunal the application for review firstly to be satisfied that it is within the prescribed time, applying to that issue s 29 of the Acts Interpretation Act 1901 (Cth), and, if it is brought within time, then for determination of the review on the merits. We note that on the material before the Court, there seems to be no reason to think that, upon the basis referred to, the application for review is not within time, but that is a matter for the Tribunal to determine. The learned primary judge made no direct finding on the issue. 17 As the appeal succeeds on a point which was not a ground authorised to be argued when the extension of time within which to appeal to this Court was first granted, in our judgment there should be no order as to costs on the appeal. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor and the Honourable Justice Mansfield.