VOAL v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant is a national of the Peoples' Republic of China. He was born on 30 December 1959. On 7 December 2000, he was issued in Beijing with a visa to enter Australia, valid until 6 March 2001. He arrived in Australia on 28 January 2001. On 31 January, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. In that application he designated an address at Doncaster East as his current residential address in Australia. 2 The applicant claimed that he had left China because he feared persecution from the authorities on account of his involvement in a Falun Gong organisation. He claimed that in 2000, somebody from a local community cadre had visited his home and found Falun Gong tapes there. The cadre member advised police, who summoned him five or six times to the local police station where, according to the applicant, he was beaten, kicked and fined. He said that he feared, if he were returned to the Peoples' Republic of China, he would be detained or put in prison. He said that police had been looking for him and asking his brothers and sisters where he had gone. 3 On 21 February 2001, a delegate of the Minister for Immigration and Multicultural Affairs decided that the applicant was not a person to whom Australia owed protection obligations. The delegate decided that although the applicant might be a practitioner of Falun Gong, and that he communicated with other practitioners through the Internet and the telephone, she did not accept that this level of activity was enough to attract the adverse attention of the authorities as described by the applicant. It is not necessary to canvass the delegate's reasons in further detail, as they are not material to the present proceedings, which relate to the refusal of the Refugee Review Tribunal ("the RRT") to accept the applicant's application for review of the delegate's decision on the basis that it was lodged out of time. 4 It is not in dispute that the record of decision and a covering letter advising the applicant of the delegate's decision and of his review rights was posted to the applicant's address in Doncaster East on the same date as that shown on the letter, namely 21 February 2001. Nor is it in dispute that on the following day, the relevant delivery centre of Australia Post attempted delivery and left a card at the address. On 23 February 2001, the applicant sent a handwritten letter to the department advising his new address, which was at Box Hill North. It was contended for the applicant that he had moved to that address on the previous day. This is not conceded by the Minister, but I am content to proceed on that assumption for present purposes. 5 The letter was not received by the department until 27 February 2001, when it was placed on the applicant's file. On 22 March 2001, the notification of the Minister's delegate's decision, which had been sent on 21 February, was returned to the department unclaimed and placed on the file. On 4 April 2001, the applicant advised the department of another change of address, which was also placed on his file. 6 On 24 April, the applicant attended at the department to inquire about the progress of his application. He was told that notification had been sent to his last known address on 21 February and that he had been properly notified of the delegate's decision. The applicant nevertheless lodged an application for a review of the delegate's decision with the RRT on 24 April 2001. In support of his application, he said that he had only learned of the delegate's decision on that day. The RRT formed the preliminary view that the application for review was out of time and that it had no jurisdiction to entertain it. The RRT invited written submissions on that preliminary question. After receiving submissions from the applicant and his adviser, the RRT decided on 28 June that it did not have jurisdiction to review the delegate's decision. 7 An application for review of that decision was filed in this Court on 3 August 2001. For reasons which are not entirely apparent, but appear to have included a dispute as to whether the matter should be transferred to the Federal Magistrates Court, it was not listed for hearing until today. It may be noted that an amended application for review was filed on 26 November 2001. The applicant is now represented by Victoria Legal Aid. 8 The application wrongly characterises the decision of the RRT as a decision that the applicant is not a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees. The RRT did not make any such decision, determining rather that it had no authority to entertain the application at all. The relevant law defining the jurisdiction of the RRT and that of this Court is to be found in the former Part 8 of the Migration Act 1958 (Cth) as it stood prior to the amendments to the Act, which came into effect on 2 October 2001. The decision of the delegate was an RRT-reviewable decision within the meaning of s 411(1)(c), being a decision to refuse to grant a protection visa. 9 The duty of the RRT to review such a decision, where a valid application is made to it, is set out in s 414, which in subs (1) provided: "414(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision." 10 Section 412 provides in s 412(1): "412(1) An application for review of an RRT-reviewable decision must: (a) be made in the approved form; and (b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and (c) be accompanied by the prescribed fee (if any)." 11 The Act does not define a valid application for the purposes of s 414, but it may be taken as a reference to an application that complies with the requirements of s 412, and including the requirement that it be given to the RRT: "…within the period prescribed, being a period ending not later than 28 days after the notification of the decision." 12 The relevant prescription is found in reg 4.31 of the Migration Regulations, which provides in subregs (1) and (2): "(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. NOTE: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method." 13 The relevant period for present purposes was 28 days commencing on the day on which the applicant was notified of the decision to which the application related. The jurisdiction of the Federal Court was confined by s 475(1) of the Act to judicially-reviewable decisions, which term includes "decisions of the Refugee Review Tribunal". There was no relevant exclusion from that category in s 475(2). 14 The grounds upon which an application for review can be made are set out in s 476 (as it was), including error of law, which is relied upon in the amended application in this case. The error contended for turns upon a narrow point of statutory construction. Counsel for the applicant argues that although the notification of the delegate's decision was sent to the applicant's last known address, the department's officers became aware of the applicant's new address before the expiry of the period prescribed as the period after which the applicant was deemed to have received the notification. This fact, it was said, had the effect that the sending of the notification was not completed at the time that the new address became known to the department, so effective notification required the letter and record of decision to be sent to the new address. 15 The applicable statutory and regulatory provisions were conveniently set out in the submissions filed on behalf of the applicant, and I refer to them for that purpose. Section 53 provides inter alia: "53(1) A visa applicant is to tell the Minister the address at which the applicant intends to live while the application is being dealt with. (2) If the applicant proposes to change the address at which he or she intends to live for at least 14 days, the applicant must tell the Minister the address and the period of proposed residence. (3) If the Minister sends or leaves a notification to the applicant at the address for the applicant given under subsection (1) or (2), the notification is taken to have been received by the applicant even if it was not received." 16 It is not necessary for present purposes to refer to the later subsections of s 53, which provide for a person to specify another person as the recipient of notification. Subsection 53(3) is supplemented by reg 5.03, which provides in subreg (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; …" The other paragraphs are not relevant for present purposes. Subregulation (2) provides: "Subregulation (1) does not apply to a document unless it is sent within 3 days after the date of the document." 17 In this case, the date of the notification document and the date it was posted were the same, namely 21 February 2001. Section 66 deals specifically with a refusal to grant a visa, and in particular s 66(1) provides: "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." The prescribed way is set out in reg 2.16, which provides in subreg (1): "2.16(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: . . . (c) by sending a notice of the decision to, or leaving a notice of the decision at: (i) the last address given to the Minister by the applicant under subsection 53(4) of the Act; or (ii) if the applicant has not given to the Minister an address under that subsection, the last address given to the Minister by the applicant under subsection 53(1) or (2) of the Act." 18 The applicable part of that regulation is paragraph (ii). It is conceded that at the time the notification of the delegate's decision was sent to the applicant, it was sent to the correct address for compliance with due notification of the delegate's decision under the Act. This concession was based upon the observations of Sackville J in Al Adwan v Minister for Immigration and Multicultural Affairs (2001) FCA 706, which in turn referred to Kumar v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 680 and Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574 at 581 per Beaumont J. 19 The applicant's submissions went on, however, to say that the address to which the notification was sent in this case ceased to be the correct address once the applicant's new and thus last address was placed on the file. It was said, at paragraph 13 of the submissions, that four things followed from this chain of events. First, there could be no deemed receipt and notification. Second, the applicant could only be validly notified of the decision if he was renotified in accordance with the provisions of the Act and Regulations, or if he received actual notification. Thirdly, in the events which occurred, he was notified only upon becoming aware of the decision, and on that day, time began to run. Fourthly, he was not out of time when he made his application to the RRT and the RRT erred in finding that it lacked jurisdiction to deal with the matter. 20 With respect to counsel's careful submissions, they are in my opinion unsustainable. The scheme of the Act and Regulations in relation to notification may from some perspectives seem draconian, but they serve two purposes: 1. To notify applicants of the outcome of decisions which affect them; 2. To require applicants at all times to remain contactable by the department. This is emphasised by the reference in s 53(2) to the obligation on an applicant to notify the department of any proposed change of address. In this case, the applicant failed to do so at a critical juncture in the processing of his application. As a result, his notification went to the wrong address. Even that difficulty would have been overcome had he arranged for redirection of his mail, but there was no suggestion that he had done so. 21 In the present case "notice of the decision was sent" as required by reg 2.16(1)(c)(ii) to the last address given to the Minister by the applicant under subs 53(1) of the Act, that being the address on the application for a protection visa. The notification so given was taken to have been received by the applicant at the address to which it was sent on 21 February 2001. That was the effect of reg 5.03 (1)(a). There is nothing in the Act or Regulation which detracts from that deeming provision where a change of address is notified ex post facto and after the sending but before deemed receipt. 22 I do not accept the submission that the process of sending remains notionally in effect until deemed receipt and is halted by the intervening notice of a new address. Neither the language nor the evident purpose of the statutory and regulatory scheme supports such a construction. That point having been resolved against the applicant, his application for review by the RRT was out of time. It was not a valid application and the RRT had no authority to entertain it. The RRT did not err in law and the application must be dismissed with costs. I certify that the preceding twenty two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.