VOAW v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2003-11-07|Before: Sundberg JJ

REASONS FOR JUDGMENT 1 The appellant is a national of the Peoples' Republic of China. 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 which he gave his current residential address as 1/959 Doncaster Road, Doncaster East. 2 On 21 February 2001 a delegate of the respondent decided that the applicant was not entitled to a protection visa. The record of decision and a covering letter advising the appellant of the delegate's decision and of his review rights were posted to the Doncaster East address on 21 February. On the following day Australia Post unsuccessfully attempted to deliver the letter, and left a card at the address. On 23 February the appellant sent a handwritten letter to the Department advising his new address in Box Hill North. The letter was received by the Department on 27 February. On 22 March the notification of the Minister's delegate's decision was returned to the Department unclaimed. 3 On 24 April the appellant attended at the Department to inquire about the progress of his application, and was informed of the decision and that it had been posted to him at the Doncaster East address on 21 February. On the same day the appellant lodged an application for review of the delegate's decision with the Refugee Review Tribunal. On 28 June the Tribunal decided that it did not have jurisdiction to review the delegate's decision, and dismissed the application. 4 The law defining the jurisdiction of the Tribunal and that of the Federal Court is found in the former Part 8 of the Migration Act 1958 (Cth) (the Act) as it stood prior to the amendments that came into effect on 2 October 2001. The delegate's decision was an RRT‑reviewable decision within the meaning of s 411(1)(c), being a decision to refuse to grant a protection visa. Section 412(1) requires an application for review of an RRT‑reviewable decision to: "(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)."

Section 414(1) requires the Tribunal to review a "valid application … under section 412". Although the Act does not define "valid application", it is clear that for an application to be "valid" it must comply with the requirements of s 412.

5 The prescribed period for the purposes of s 412(1)(b) was found in reg 4.31(2) of the Migration Regulations. In its application to the appellant the period: "commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of: … (b) … 28 days." 6 Division 3 of Part 2 of the Act dealt with visas for non‑citizens. Subdivision AB contained a "Code of procedure for dealing fairly, efficiently and quickly with visa applications". Section 53, which was in that Subdivision, provided in part: "(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."

"For the purposes of the Act and these Regulations, and subject to the Act and specific provisions elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time the document is taken to be received at the address to which the document is sent, which is …: (a) if the document is sent from a place in Australia to an address in Australia - 7 days after the date of the document …."

Subdivision AC of Division 3 dealt with the grant of visas. Section 66, which was in that Subdivision, provided in sub‑s (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."

"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 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."

For present purposes par (ii) is the relevant part of the regulation.

7 It is convenient at this stage to set out the prima facie effect of the various provisions set out above on the facts recorded in [2] and [3]:

Delegate's letter posted to Doncaster East address 21 February 2001 Change of address letter received by Department 27 February 2001 Deemed receipt of delegate's letter 28 February 2001 Expiration of 28 day period 28 March 2001 Application for review 24 April 2001

Subject to the argument put to the primary judge, the application for review was thus well out of the time prescribed by s 412(1).

8 Before the primary judge the appellant sought to review the Tribunal's decision on the ground that it had made an error of law within s 476(1)(e) of the Act. It was said that although the notification of the delegate's decision was sent to the appellant's last‑known address, the Department's officers became aware of his new address before the expiry of the prescribed period. It was contended that this had the effect that the sending of the notification was not completed at the time the new address became known to the Department, with the result that effective notification required the letter and record of decision to be sent to the new address. The primary judge recorded the appellant's argument and its consequences as follows: "The ….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 … 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." Returning to the events and deemed events set out in [7], the effect of the argument was that the reg 5.03(1) seven day period which had begun to run on 21 February, ceased to run on 27 February and never resumed running. 9 The primary judge's reasons for rejecting the appellant's submission are as follows: "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. 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." 10 On the appeal the submissions made to the primary judge were repeated. In our view, the primary judge correctly rejected them. They go beyond a process of statutory construction. They require a remodelling of the legislation to deal with the specific fact situation thrown up by the appellant's case. There is no implication in the relevant provisions that receipt of notice of a new address after a valid notification has been sent, but before its deemed receipt, causes the operation of provisions which were activated by the sending of the notification to be halted. Section 53 was to the contrary. Although it did not expressly say so, the intent is clear enough that notification to the original address attracts the operation of sub‑section (3) unless the applicant has told the Minister of a new address before the Minister acts in reliance on the original address by sending notification to, or leaving notification at, it. Section 53 was directed to the time at which the Minister sends or leaves notification. At that time the "current" address will be either the original or a new one of which the Minister has been told. Sub‑section (3) contemplated two possible addresses, and dealt with the possibility that notification is not in fact received, and deems it to have been received even if it was not. It was intended to cover the field. 11 In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 the majority in effect read words into s 80C(3) of the Income Tax Assessment Act 1936 (Cth) to avoid a drafting oversight and to achieve a result that was consistent with what was conceived to be Parliament's manifest intention. Gibbs CJ at 307 said: "I conclude that the intention of the legislature sufficiently appears when ss 80A, 80B and 80C are read together and that it is permissible to depart from the literal meaning of the words of s. 80C (3) in order to give effect to that intention."

"a close examination of [s 80C(3)] against the background of its legislative history and that of its neighbouring sections has satisfied me that the intent of its framers, which it reflected when it was originally enacted, has been stultified by amendments to other provisions …."

His Honour applied the observations of Fry LJ in Curtis v Stovin (1889) 22 QBD 513 at 519. His Lordship refused to adopt a literal interpretation which would have led to the result "that the plain intention of the legislature has entirely failed by reason of a slight inexactitude in the language of the section". Mason and Wilson JJ were of the same view. They said at 322:

"This construction is justified on the footing that it is a necessary implication to be deduced from the legislative scheme considered as a whole." 12 In the present case it is not possible to say that any Parliamentary intention is disclosed in relation to the case where a notification has gone out to an applicant's then current address, with the result that the procedural regime was thereby activated, followed by a notified change of address received before the deemed receipt of the notification, let alone an intention that the regime should grind to a halt mid‑way through the notification process so that it must start afresh. In the present case the legislative intention appears to be to create a clear set of rules governing the giving and deemed receipt of notifications. A consideration of the procedural scheme as a whole does not suggest any intention that the regime be as proposed by the appellant. As we have said, Subdivision AB contained a code of procedure for dealing "fairly, efficiently and quickly" with visa applications. Unless one can be certain that one is filling a gap in accordance with Parliament's probable intention, the appropriate course is to follow Lord Simonds' injunction in Magor and St Mellons RDC v Newport Corporation [1952] AC 189 at 191 - "If a gap is disclosed, the remedy lies in an amending Act" and not in a "usurpation of the legislative function under the thin guise of interpretation". See also Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 12 per Gibbs J. 13 In Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 283 Mahoney JA, with whom McHugh and Clarke JJA agreed, said: "Legislative inadvertence may consist, inter alia, of either of two things. The draftsman may have failed to consider what should be provided in respect of a particular matter and so fail to provide for it. In such a case, though it may be possible to conjecture what, had he adverted to it, he would have provided, the court may not, in my opinion, supply the deficiency. In the other case, the legislative inadvertence consists, not in a failure to address the problem and determine what should be done, but in the failure to provide in the instrument express words appropriate to give effect to it. In the second case, it may be possible for the court, in the process of construction, to remedy the omission."

If there is any legislative inadvertence in the present case, it falls into the first category though, as we have said, we do not think it possible to say what it would have provided had it adverted to that situation. In this connection, see also Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292 at 302 per McHugh JA.

14 In a letter handed to the Court on the hearing of the appeal, the appellant asked us "to urge the Department of Immigration to change its rigid … stand". That plea can only be dealt with by the respondent, perhaps pursuant to s 48B of the Act.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Lindgren and Sundberg JJ

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