Sections 425 and 426
19 Notwithstanding the reservations as to the applicant's evidence earlier expressed, I accept that the intended notification under s 426 did not actually come to the applicant's attention until it was too late for him to take advantage of it. I think that he became aware of the letter sent to his adviser at some stage between 1 and 6 April 1999. Precisely when does not matter.
20 That being so, as a pure matter of fact, the applicant was not given an opportunity to appear before RRT to give evidence, nor was he notified of his entitlement to appear before RRT to give evidence. As a result of a break down in communications, (and the absence of his adviser overseas) the statutory entitlement flowing from s 425 was effectively denied to him.
21 The respondent submitted that the applicant selected the address for service; he was aware of its importance; the onus lay upon him to notify the respondent of any change to it, and in any event the s 426 notification was copied to the applicant's adviser at the adviser's current business address. The Regulations operated to deem the letter of 9 March 1999 to have been received on 16 March 1999, hence there was a deemed notification on that date to the applicant of his entitlement to appear before RRT to give evidence. Section 426 is thus complied with. The deemed receipt of the notification is "for the purposes of the Act", including s 425. The applicant has been given the opportunity for which s 425 makes provision if RRT has done what the Regulations require of it so as to notify the applicant of his entitlement in that respect.
22 The authorities establish that s 425 and s 426 are cumulative requirements in the sense that the giving of a notice under s 426 will not necessarily exhaust the s 425 obligation: Minister for Immigration & Multicultural Affairs v Capitly [1999] FCA 193. But, unless a s 426 notice was given to the applicant, the proposition that he was given an opportunity to appear before RRT to give evidence, does not get off the ground. Even if the effect of the regulations is such that the s 426 notice is deemed to have been received by the applicant such that the requirements of s 426 are satisfied, there is or may be a further question as to whether the obligation imposed upon RRT by s 425 is satisfied where, as a matter of fact, the opportunity for which s 425 makes provision is not extended to the applicant.
23 Regulation 5.03, in the form in which it stood prior to 1 July 1997, was expressed to apply for the purposes of the Regulations and subject to specific provision elsewhere in the Regulations. In a series of cases reviewed by Tamberlin J in Alkaab v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 178 it was held that a regulation in that form could not apply to a notification requirement contained in the Act.
24 The current form of Regulation 5.03 was considered by Beaumont J in Susiatin v Minister for Immigration & Multicultural Affairs (1998) 83 FCR 574 in the context of s 478 of the Act, which requires that an application for review under s 476 of the Act must be lodged within a specified period of the applicant being notified of the decision. His Honour proceeded on the basis that Regulation 5.03 was a deeming provision and that the applicant was to be taken to have been notified of the decision on the deemed date of receipt of the document embodying the decision. The application for review was thus one day out of time.
25 It is implicit in the decision of Tamberlin J in Budiyal v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 166, 172G that Regulation 5.03 applies to a notification under s 426, although there is no specific discussion of the point.
26 Sook Rye Son v Minister for Immigration & Multicultural Affairs [1999] FCA 7; 161 ALR 612 is a decision of the Full Court. Neither Moore J at [33] nor Katz J [55] expressed a view as to whether deemed notification pursuant to Regulation 5.03 can suffice for the purposes of s 426. Burchett J held that Regulation 4.41 did not apply to a person who was in immigration detention, because of the specific provision otherwise made by the Regulations for service in such case. The applicant was in immigration detention and the specific provision was not complied with. However, his Honour went on to hold that Regulations 4.41 and 5.03 do not impact upon the requirement of s 426 by which RRT "must notify the applicant" of the rights specified in the section. Given the conclusion which his Honour reached in relation to the inapplicability of Regulation 4.41 to a person who was in immigration detention, his Honour's observations in relation to s 426 are dicta, but they represent a considered decision of a judge of this Court on the question.
27 His Honour described the proposition that Regulation 5.03 applies to s 426 as an absurdity, and that the introductory words of the Regulation "subject to this Act" denied the Regulation any operation in respect of s 426(1). If, contrary to that view, the regulation had the effect of converting the s 426 obligation to notify an applicant of certain matters into an obligation to be satisfied by the service of a document, and then deeming the service and notification to have occurred at a time when it had not occurred, then the Regulation would not be within the s 504(3) Regulation making power.
28 His Honour considered the earlier authorities on Regulation 5.03 in the form which it took before and after the 1 July 1997 amendments including the decision of Beaumont J in Susiatin. His Honour considered that the authority of that decision was undermined by reason of the failure to draw to Beaumont J's attention the decision of Merkel J in Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386, in the context of s 478 of the Act, where his Honour concluded that actual notice of the decision was required before a person's right of review could expire.
29 The respondent submitted that the decision of Burchett J was wrong and that I should not follow it. The respondent's submissions largely involved a comparison between passages in various judgments which touch and concern this question which I do not find very profitable to pursue.
30 If one approaches the matter as a question of principle, one would conclude that s 425 requires RRT to give the applicant a real opportunity to appear before it and give evidence, and that it is a necessary, but perhaps not a sufficient, step in the performance of that duty, that actual notice (subject, perhaps, to the Regulations) of the s 426 entitlements be given to the applicant. Even if the Regulations are effective so as to provide for deemed receipt of a document, and even if deemed receipt of a document amounts to performance of the statutory obligation that RRT "must notify", the s 425 duty is not necessarily performed or discharged by service, or deemed service, of a document. To borrow the language of North J in Kamkar v Minister for Immigration & Multicultural Affairs (1996) 71 FCR 424, 427, there is no linguistic point of contact between s 425 and Regulations 4.41 and 5.03, suggesting that those Regulations were not meant to play a role in respect of s 425.
31 In the present case, the opportunity for which s 425 makes provision was claimed to have been extended to the applicant by posting a letter addressed to the applicant, admittedly at a notified address for service, but when RRT knew of facts which ought to have alerted it to the fact that a letter sent in that way might well not come to the applicant's attention. If, as was likely to be the case, a letter sent in that way did not reach the applicant, then it cannot meaningfully be said that RRT has given to the applicant the opportunity which s 425 requires to be extended to him. The fact that the letter was copied to the adviser cannot alter the position unless the adviser conveyed its terms to the applicant. Thus, on the facts of this case, there has been a failure to comply with s 425, whatever view is reached as to whether s 426 requires actual notification.
32 The well established practice of the Court is that a single judge follows earlier decisions of other single judges unless he or she thinks they are clearly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233, 255. But the decisions of Burchett J in Sook Rye Son and Beaumont J in Susiatin are in conflict. The decision of Burchett J is, in my view, in harmony with the decision of Merkel J in Wang and with that of North J in Kamkar. Those decisions were based upon the construction of the Act, rather than upon the form which the Regulations then took. Neither was referred to by Beaumont J in Susiatin.
33 In Shrestha v Minister for Immigration & Multicultural Affairs (unreported, 13 October 1997) Sackville J reviewed the cases in which a different result was reached in relation to s 412(1)(b) of the Act, but his Honour did not call into question the correctness of the decisions that s 428 operated in relation to actual notification, rather than deemed notification.
34 The decision of Burchett J is a decision directly on s 426 of the Act. In my view, neither the conclusion which his Honour reached, nor the reasoning on which it is based can be characterised as clearly wrong. In those circumstances I think that I should follow his Honour's decision, with the result that the procedures required to be observed by s 426 of the Act in connection with the making of the decision were not observed, as the applicant was not notified prior to the decision of the matters referred to in s 426(1)(a).
35 Assuming (contrary to my findings) that the operation of the Regulations is such that the applicant is deemed to have been notified of the matters referred to in the letter of 9 March 1999, and is taken to have been given the opportunities referred to in that letter, further issues would arise as to whether the terms of the letter were such as result in compliance with s 425(1)(a) and s 426(1)(a) and (b).
36 There are two potential problems with the form of that letter. First, in Sook Rye Son Moore J [at 32] held that a letter which did not inform an applicant of the period in which she was to advise RRT of the names of witnesses from whom the applicant wanted RRT to obtain evidence did not comply with s 426(1)(b). Burchett J agreed [4]. Katz J did not consider it necessary to express a view [55]. Second, there is or may be a question as to whether it is open to RRT to make the s 425(1)(a) entitlement conditional upon the applicant electing to take advantage of it by a specified date, even if the date specified in that regard is not unreasonable. However, in view of my conclusion it is not necessary for me to reach a conclusion on these further issues.