Solomon v Minister for Immigration & Multicultural Affairs

"(1) A notice or statement to be given to an applicant in relation to a decision of the Tribunal is to be taken to be duly given if the notice or statement is given: (a) by posting it to the last address for service provided by the applicant in connection with his or her application for review; …" 7 A notice or statement, mentioned in sub-reg (1), is taken to be received at a time calculated in accordance with reg 5.03. Regulation 5.03 relevantly 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; … (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; … (2) Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document." 8 There is authority for the proposition that a notice or statement is given within the meaning of reg 4.40(1) when it is posted by registered mail - see Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 per O'Connor and Mansfield JJ at par 33. 9 Regulation 5.03 was amended by the Migration Regulations (Amendment) Statutory Rules 1997, No 109 (Cth) commencing on 1 July 1997. The historical background to that amendment is set out by Mansfield J in Kumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1233. 10 In Minister for Immigration and Multicultural Affairs v Singh (supra) a Full Court of this Court held that reg 5.03 was invalid in so far as it purported to operate in respect of certain time limits imposed by reg 4.31 under s 412(1) of the Act. Regulation 4.31 and s 412(1) of the Act deal with applications for review of RRT reviewable decisions by the Tribunal, and not review of decisions of the Tribunal by the Court. It was not contended before me that the decision of the Full Court in Singh was directly applicable to the present application, and for reasons which will become apparent, it is unnecessary for me to express any view upon that subject. 11 The evidence before the Court is that under cover of a letter dated 11 December 1997 the Tribunal sent a copy of its decision, by registered post, to the applicant's last known address. The letter together with the copy of the Tribunal's decision was returned, unopened, by Australia Post to the Tribunal on 20 February 1998. It appears that the applicant had left the address at which he had been residing without having notified the Tribunal of that fact. The respondent submitted that the combined effect of regs 4.40(1) and 5.03 was that the applicant was deemed to have been notified of the decision by 18 December 1997 (seven days after the date which the letter bore), and that his application for review which was lodged on 17 August 1999 was therefore out of time. As the respondent correctly noted s 478(2) of the Act prevents this Court from extending the period of twenty-eight days within which an application for review under Pt 8 of the Act must be made. 12 It is not necessary for me to determine whether the respondent's submission that the applicant was notified of the decision by 18 December 1997 is correct. That is because, on any view, the applicant was notified of that decision no later than 18 September 1998, approximately eleven months before he lodged his application for review. 13 On 18 September 1998, Messrs Nicholas Koenig and Adrian Simons, who are solicitors and accredited immigration law specialists, wrote to the Tribunal on the applicant's behalf enclosing an authority to act signed by the applicant. It is clear that the solicitors were instructed to act for him in relation to his claim to refugee status. The solicitors informed the Tribunal that the applicant had never received a copy of the Tribunal's decision because he had changed address. The letter indicated quite openly that the solicitors were aware that the Tribunal had rejected the applicant's claim on 11 December 1997. It noted that the applicant had a bridging visa which would expire on 20 September 1998, and that it was therefore necessary, as a matter of urgency, that a copy of the Tribunal's decision be forwarded to them. 14 On 22 September 1998, the applicant's solicitors wrote to the Minister for Immigration and Multicultural Affairs. That letter said, in part: "Although we have applied for a copy of the Refugee Tribunal decision, at this stage, we have not received same and, accordingly, both Loreto and our office are unaware of the substance and details of the Refusal. Loreto's friend in New South Wales subsequently moved and despite a request from Loreto for the friend to notify the Department of the new address in New South Wales, it appears that this was not done and accordingly when the Refugee Review Tribunal made a decision against Loreto in December 1997, no decision was ever forwarded to him and it was only because of our inquiry on his behalf on even date that we were able to ascertain the date of the Refugee Review Tribunal rejection. Loreto had instructed us that he just recently made a voluntary inquiry to the Department as to the progress of his Refugee application whereupon he was subsequently informed that his application had been rejected and he was then granted a Bridging E visa." (emphasis added) 15 Subsequently, on 15 October 1998, the solicitors wrote again to the respondent reminding him of their earlier letter. It is clear from the terms of that letter that the solicitors were still, at that stage, acting on behalf of the applicant. It goes without saying that by that time the solicitors had been aware that the Tribunal had rejected the applicant's application for a protection visa in December 1997 for almost a month. 16 It also goes without saying that in their letters to the respondent the solicitors attributed to the applicant the same knowledge concerning the outcome of the Tribunal's determination as was possessed by them. In other words, the solicitors confirmed in their correspondence that the applicant had himself been notified of the decision. 17 There is authority for the proposition that an applicant is relevantly "notified" of a decision of the Tribunal rejecting his application when he learns of the decision, albeit without having yet been provided with the reasons. In Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 a Full Court of this Court dealt with this issue, and Jenkinson J at 167 and Beazley J at 178 so held. In the same case Jenkinson J held at 169-170 that an applicant may be regarded as having been "notified" of a decision where his duly authorised legal representatives have themselves been notified of the decision. Both Lee and Beazley JJ disagreed with Jenkinson J regarding this latter aspect of the matter. However, neither indicated that an acknowledgment by the applicant's solicitors that he had been personally notified of the Tribunal's decision could not be used to ground an objection to competency based upon s 478(1)(b) of the Act. 18 Notwithstanding the fact that the applicant had been notified, no later than September 1998, that in December 1997 the Tribunal had rejected his application, he did not commence proceedings in this Court to review the Tribunal's decision until almost one year later, on 17 August 1999. It follows that his application for review was not lodged within the requisite period of twenty-eight days of being notified of the decision. There is no power under s 478 of the Act to extend time. 19 It is obvious that the objection to competency must succeed. The application for review must be dismissed, and the applicant must pay the respondent's costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Counsel for the Applicant: Applicant appeared in person

Solicitor for the Respondent: Australian Government Solicitor