Van Chuong Nguyen v Minister for Immigration and Ethnic Affairs

It can be seen that s 55(3) deems a notification to have been received by the applicant if sent to the address provided in accordance with s 55(1) and (2). If the Minister refuses to grant a visa he or she is obliged to notify the applicant. Section 66 provides: "(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. (2) ... (3) ... (4) ..." The Migration Regulations ("the Regulations") deal with two aspects of ss 412 and 66. Regulation 4.31 deals with the periods referred to in s 412(1)(b). The regulation relevantly provides: "(1) For the purposes of paragraph 412(1)(b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal. (2) A period mentioned in subregulation(1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of: (a) in the case of an application given to the Tribunal by or for an applicant in immigration detention on that day - 7 working days (beginning with the first working day that occurs on or after that day); or (b) in any other case - 28 days. (3) Subject to this regulation, an application must be lodged at a registry of the Tribunal: (a) by posting the application to that registry; or (b) by leaving it at that registry in a box designated for the lodgment of such applications; or (c) by leaving it with a person employed at that registry and authorised to receive such documents; or (d) by means of electronic facsimile transmission to that registry. (4) An application posted in accordance with paragraph (3)(a) or transmitted in accordance with paragraph (3)(d) is not to be taken to have been lodged until it is received at a registry of the Tribunal."

The manner of notifying an applicant for the purposes of s 66 is dealt with by reg 2.16, which provides: "(1) For the purposes of subsection 66(1) of the Act (dealing with giving notice of decisions), the Minister is to notify an applicant of a decision to grant or refuse a visa: (a) if the decision is to grant the visa: (i) if under these Regulations evidence of that visa must be given to the applicant in a particular way - by giving the applicant evidence of the visa in that way; or (ii) if under these Regulations no evidence of the visa need be given to the applicant - by telling the applicant orally that the visa has been granted; or (b) in the case of a bridging visa granted at the same time as a substantive visa - by given the applicant evidence of the substantive visa; or (c) by sending a notice of the decision to, or leaving a notice of the decision at, the last address given to the Minister by the applicant under section 53 of the Act (which deals with what an applicant must tell the Minister): or (d) by handing a notice of the decision to the applicant or a person specified by the applicant under subsection 53(4) of the Act. (2) If 2 or more applicants have combined their applications in a way permitted by Schedule 1, the Minister need notify only 1 of those applicants of the Minister's decision on those applications."

It is to be noted that reg 2.16(2) deals with the notification of one applicant when there is more than one. In the present case, the letter of 8 August 1995 was addressed only to the second applicant in these proceedings, but no point is raised about the letter being addressed in this way. The last relevant regulation is reg 5.03, which provides: "(1) For the purposes of these Regulations, and subject to specific provision elsewhere in these Regulations, a document that is sent by the Minister or a Tribunal is taken to be received: (a) if the document is sent from a place in Australia to an address in Australia - 7 days after the date of the document; or (b) if the document is sent from: (i) a place outside Australia to an address in Australia; or (ii) a place in Australia to an address outside Australia; or (iii)a place outside Australia to an address outside Australia; 21 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.

In the present case there is no suggestion that the Minister failed to act in the way directed by s 66(1). A notice of the decision was sent to the last residential address given to the Minister by the applicants in the manner provided for in s 53. Thus the Minister has notified the applicants in the prescribed way. The consequences of doing so involves a consideration of the provisions I have just set out. Sections 66 and 504 authorise the making of a regulation that identifies a means of notification that must be used. Section 66 is not in terms that indicate any limits exist on the means that might be prescribed and, in particular, that indicate it should be a means which would parallel the provisions of s 55. That is, a way of notifying an applicant involving the sending or leaving of a notification at the address provided in the way required by s 55. However if, as is reflected in reg 2.16, such a means is the prescribed way, there is no reason apparent to me why the provisions of s 55(3) would not then apply to notification in accordance with the prescribed way. Thus the adoption in reg 2.16(1)(c) of a method of notification involving the sending or leaving of the notification at the address provided in conformity with s 55 results, by operation of s 55(3), in the imputed receipt of the notification by the applicant, whether or not it is in fact received. However there remains the question of when there was, in the present case, an act that constituted "the notification of the decision", as that expression is used in s 412(1)(b), so as to identify the commencing time of the period referred to in that paragraph. The letter notifying the applicants of the refusal to grant the visas was dated 8 August 1995. It was sent on the day it was dated. If reg 5.03 applied, reg 5.03(1)(a) would operate so as to treat the document as having been received on 15 August 1995, that is, seven days after the date of the document. I considered the operation of reg 5.03 in Van Chuong Nguyen v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 31 July 1996) and for the reasons I then gave, reg 5.03 would operate on the sending of a notification in the way prescribed by reg 2.16(1)(c). However, while reg 5.03 operates to impute receipt at a particular time, what is not clear in the regulation is whether the word "received" is to be treated as reception at the address to which it is sent or is to be treated as reception by the applicant at that address. This uncertainty raised by the language of regulation 5.03(1) is of importance. The expression "is taken to be received" effectively deems a certain result without identifying upon whom or what that deemed result operates. The only immediate contextual indication of how the deeming effect is intended to operate is the reference on four occasions in paragraphs (a) and (b) to the expression "to an address". The structure of the regulation tends to suggest that the deeming effect of the regulation operates on the address and not the addressee of the communication. The word "received" appears not only in reg 5.03 but also reg 5.02 when it is a reference, in context, to reception by the person. Similarly it appears in reg 4.41(4) where, in context, it appears to be a reference to reception by the person. It is also used in s 53(3) as reception by the person. In contrast, it is used to mean reception at a place in reg 4.35. However I am presently considering the operation of reg 5.03 on the provisions of reg 2.16 and, in particular, the effect of reg 5.03 on the Minister "notify(ing) an applicant of a decision ... by sending a notice of the decision to ... the last address given ... under s 53". Even if reg 5.03 relates to receipt at the address, then the effect of s 53(3), in my opinion, is to require the receipt at the address to be treated as receipt by an applicant at the address in a case such as the present. Thus the sending of a notification of the refusal of the grant of a visa to an address in Australia provided in the manner required by s 55(1) and (2) is deemed to have resulted in receipt by the applicant for the visa of the notification seven days after the date of the document containing the notification. In the present case it would have the effect of deeming the letter of 8 August 1995 as having been received by the addressee on 15 August 1995. Section 412 speaks of "28 days after the notification of the decision". It does not, in terms, make reference to the notification of the applicant or the receipt by the applicant of notice of the decision. It is s 66 that contains such a provision when it refers to "notify the applicant of the decision". However that obligation is, as already discussed, to be effected in the prescribed way. In my opinion, the combined effect of s 55(3), reg 2.16 and reg 5.03 is that compliance with reg 2.16(1)(c) results in deemed notification of the decision seven days after the date of the document notifying the applicant of the decision. It is that time that provides the reference point for the commencement of the limitation period provided for in s 412(1)(b) and prescribed by regulation 4.31. The applicants referred to a passage in the judgment I gave in Nguyen (supra), in which I said: "Similarly, in my view, and to adopt the language of his Honour, the right of the applicant to seek a review, see Esber v The Commonwealth of Australia (1992) 174 CLR 430 at 438-440 in the present case should not readily be construed so as to fix upon something less than the giving of notice and to accept an imputed notification as sufficient for the operation of the legislation. Plainly that approach, which involves a construction beneficial to the person whose rights depend upon the giving of notice, is to be adopted only in ascertaining the legislative intention reflected in the language of the Act and regulations are not to impute a meaning to words in an Act or regulation at odds with it."

That passage was preceded by a reference to the judgment of Gummow J in Secretary, Department of Social Security v Garratt (1992) 109 ALR 149 at 157. In the quoted passage from Nguyen I indicated that a beneficial construction of provisions concerning notice was an approach to be adopted when ascertaining the intention of Parliament reflected in the language of the Act and regulations. However, that approach does not provide a licence to construe an Act or regulations in a way that is at odds with what is the likely or probable intention of legislation. It may be accepted that the statutory right to seek a review of a decision of the Minister is an important right. It may expose some deficiency in the decision making process that renders the decision unlawful. The decision may often impact on an applicant in a fundamental way having regard to the subject matter of the decision. I accept that the Act and regulations, as I apprehend their effect, operate harshly on the applicants in this matter. It must, however, be borne in mind that any rights an applicant may have either to a visa or review by a statutory tribunal or this Court is a right conferred by an Act of the Parliament. It is open to Parliament to modify, limit or indeed remove those rights. I was referred to a judgment of North J in Kamkar v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, 9 December 1996). In that matter, his Honour was required to determine whether there had been notification of a decision for the purposes of s 478(1)(b) of the Act. His Honour considered the operation of both s 478(1)(b) and regulation 4.40. As to whether regulation 4.40 had any relevance to the notification referred to in s 478, his Honour reached a conclusion which differed from the view I had expressed in Nguyen. His Honour concluded s 478 operated on actual notification. However it is not necessary for me to embark upon a further analysis of s 478, and regulation 4.40. It is sufficient, for the purposes of deciding this matter and assuming the construction of the Act and regulations adopted by North J is correct, to note that the language of s 478 differs from that of s 412 and the former speaks of "within 28 days of the applicant being notified of the decision" and the latter speaks of "the notification" and does so in the context of the particular provisions found in s 66. In my opinion, in this matter, the Tribunal correctly concluded that the application before it had been filed out of time. I dismiss the application for review. I propose, in the circumstances, to make no order as to costs. I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore. Associate: ...................... Alexandra George Dated: 31 January 1997 APPEARANCES Counsel for the Applicant: Mr K.A. Osei & Ms A. Drayton Solicitor for the Respondent: Australian Government Solicitor Dates of Hearing: 12 December 1996 Date of Judgment: 3 February 1997