Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 This appeal concerns the proper construction of s 494D(1) of the Migration Act 1958 (Cth) (the Act). That subsection requires the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs, to give a document to an authorised recipient, instead of the person to whom the document would be sent if there were no authorised recipient. The central issue in the appeal is whether, by posting a letter addressed to the appellant, care of his sister, who was his authorised recipient, at her address, the respondent gave the document to the sister, instead of to the appellant. THE FACTS AND THE LEGISLATION 2 The appellant is a 42 year old national of Sri Lanka. He arrived in Australia on a visitor visa, with his wife and two sons, on 26 June 2001. He, and his family, applied for protection visas under the Act on 23 July 2001. His claim was that he feared persecution by reason of his political opinion if he were to be returned to Sri Lanka. On 3 January 2002, a delegate of the respondent determined to reject that claim and to refuse to grant the protection visas sought. 3 On 26 February 2002, the appellant applied for review of the decision of the delegate of the respondent by the Refugee Review Tribunal (the Tribunal) under s 412 of the Act. On 30 May 2002 the Tribunal determined that it did not have jurisdiction to review the decision of the delegate. That was because it considered the application for review to the Tribunal had not been given to the Tribunal, as required by s 412(1)(b) of the Act, within the period prescribed, being a period ending not later than 28 days after the notification of the decision of the delegate. The Tribunal has no power to extend the time within which an application for review may validly be made to it. The critical issue was how and when the appellant had been notified of the decision of the delegate. 4 Section 66(1) of the Act provides that, when the respondent grants or refuses to grant a visa, he is to 'notify' the applicant of the decision 'in the prescribed way'. Relevantly, Reg 2.16(3) of the Migration Regulations provides that the respondent must notify an applicant of a decision to refuse to grant a visa by one of the methods in s 494B of the Act. Section 494B relevantly provides: '(1) For the purposes of provisions of this Act or the regulations that: (a) require or permit the Minister to give a document to a person (the recipient); and (b) state that the Minister must do so by one of the methods specified in this section; the methods are as follows. … (4) Another method consists of the Minister dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or (ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents. … (5) Another method consists of the Minister transmitting the document by: a. fax; or b. e-mail; or c. other electronic means; to the last fax number, e-mail address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents.' Sub-sections 494B(2) and (3) provide for giving the document to the recipient by hand, or by handing the document to a person at the last residential or business address provided to the respondent by the recipient for the purpose of receiving documents. Section 494B is one of a group of provisions, which include s 494D, brought in to the Act by the Migration Legislation Amendment (Electronic Transmission and Methods of Notification) Act 2001 (Cth), in effect from 10 August 2001. 5 The means of notification in this instance was by prepaid post. The appellant was sent by prepaid post a letter notifying him of the delegate's decision, and enclosing the delegate's reasons for decision, which was posted on 3 January 2002. The letter was addressed as follows: 'Mr [appellant's name] C/O Ms [B D] [Street number and name] Cranbourne Vic 3977' and then commenced 'Dear Mr [appellant's name]'. 6 Ms B D is a sister of the appellant. The address is her address. The address on the letter is neither the last address for service provided to the respondent by the appellant for the purposes of receiving documents, nor the last residential or business address provided to the respondent by the appellant for the purposes of receiving documents: see s 494B(4)(c)(i) and (ii). 7 Section 494C relevantly provides that, if the respondent gives a document to a person by one of the methods specified in s 494B, in the case of dispatch by prepaid post or by other prepaid means, then the person is taken to have received the document, if it was dispatched from a place in Australia to an address in Australia, seven working days after the date of the document. The expression 'working day' is defined in s 5(1) of the Act to mean any day that is not a Saturday, a Sunday or a public holiday in the relevant place. 8 Hence, had s 494B(4) been complied with in its terms, s 494C would have deemed the appellant to have received the document no later than 15 January 2002, being seven working days after the date of the letter. The 28 day period provided for by s 412(1)(b) then expired on 11 February 2002, and the application to the Tribunal would clearly have been out of time. 9 The respondent relied upon s 494D of the Act as demonstrating notification of the delegate's decision to the respondent in the manner provided by s 494B(4), and so notification by 15 January 2002. Otherwise, it was accepted, the appellant actually received notification on 6 February 2002, after his brother collected the registered mail article from the post office on that day. In that event, his application to the Tribunal was within time. 10 Section 494D contemplates notification of the delegate's decision being given not directly to the appellant, but to another person. It provides: '(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person. NOTE: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method. (2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document. (3) The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person's authorised recipient. (4) The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.'