Wang, Chun v Minister for Immigration & Multicultural Affairs [1997] FCA 70 - FCA 1996 case summary — Zoe

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Wang, Chun v Minister for Immigration & Multicultural Affairs [1997] FCA 70

[1997] FCA 70

Federal Court of Australia|1996-12-09|Before: Affairs North J, Affairs Moore J, Gerkens Ryan J, Merkel J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

1996-12-09

Before

Affairs North J, Affairs Moore J, Gerkens Ryan J, Merkel J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

REASONS FOR JUDGMENT Introduction In The Trial Franz Kafka tells the story of a man who comes from the country to gain admittance to the Law. Before the Law stands a door-keeper who says that he cannot admit the man at the moment. The man had not expected to meet this difficulty as he thought that the Law should be accessible to every man and at all times. But he decides that he had better wait until he gets permission to enter. He waits for days and years. Finally the man asks how does it come about that in all these years no one has come seeking admittance but me? The door-keeper perceives that the man is at the end of his strength and his hearing is failing, so he bellows in his ear: "No one but you could gain admittance through this door, since this door was intended only for you. I am now going to shut it."

[2]

Occasionally a case arises which makes the word Kafkaesque appear to be a description of fact rather than fiction. The present is such a case. The facts The applicant is a Chinese student. He applied for a Class 816 visa. His application was refused on the ground that he lodged it 16 days too late and was therefore ineligible for the visa. He applied for a review of the decision by the Immigration Review Tribunal ("the IRT"), which on 20 December 1995, made a decision affirming the decision to refuse the visa. On 21 December 1995, in compliance with its statutory obligation to give the applicant a copy of the decision, the IRT sent a copy by post to the applicant. The letter enclosing the decision was incorrectly addressed to Mr Jun Wang, rather than Mr Chun Wang. It was signed on behalf of the Deputy Registrar and correctly informed the addressee - "You may appeal to the Federal Court of Australia, on a question of law, against this decision. Any such appeal must be made within 28 days of notification of this decision."

[8]

The operation of the section has been considered by the Court on a number of occasions, mainly in relation to the RRT. In my view it should be taken to be established that, for the purposes of s.478(1), a person is notified of a decision of the RRT or the IRT when the substance or outcome of the decision is actually communicated to the person adversely affected by it: see Long Guan Chun v. Minister for Immigration, Local Government and Ethnic Affairs (1996) 136 ALR 303 at 307 per Jenkinson J and 317 per Beazley J. In Long the majority concluded that it was the actual notification to the applicant of the substance of the decision of the RRT, rather than the giving of the RRT's statement of reasons under s.430 (which is the counterpart for the RRT of s.368 for the IRT), that constituted a notification for the purposes of s.478. In Kamkar v. Minister for Immigration and Multicultural Affairs North J unreported, 9 December 1996 it was held that the period for review under s.478 commenced from the date of actual notification of the decision to the applicant and not on any deemed date of notification by reason of service by post under the Regulations. A different view was expressed in Vinod v. Minister for Immigration and Multicultural Affairs Sackville J unreported, 14 August 1996 and Van Chuong Nguyen v. Minister for Immigration and Ethnic Affairs Moore J unreported, 31 July 1996. However, it seems to me that although the Regulations may permit compliance with s.368 by the giving of a written statement of the decision by post that is not a substitute for the actual notification required under s.478. Further, it would be an extraordinary result under the Act if a person's right to review a decision, that can affect that person's life and well-being, can expire before the person becomes aware of the decision. Later in these reasons I discuss the principles of statutory interpretation which tend to reject such an approach unless the clear words of the statute require it: see for example, University College v. Durdy (1982) 1 Ch 413. On the other hand in Seci Dawai and Another v. Minister for Immigration and Multicultural Affairs, Moore J unreported, 3 February 1997 and Coung Van Nguyen v. M.W. Gerkens, Refugee Review Tribunal, Ryan J unreported, 8 October 1996 deemed "notification of the decision", as a result of service by post, was upheld for the purposes of s.412 and its statutory predecessor s.166BA. I need not pursue this aspect of the matter further as, in the present case, the notification by post was not to the applicant but to Mr Jun Wang. In my view the use of the word "must" in s.478(1)(b) and (2), in relation to the 28 day time limit, is not merely directory but "is a word of absolute obligation": see Posner v. Collector for Inter-State Destitute Persons (Victoria) (1947) 74 CLR 461 at 490 per Williams J and Kosovich v. Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J. Such an interpretation also accords with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory and not merely directory: see Pearce and Geddes Statutory Interpretation in Australia (4th Ed 1996) at 278 and Public Prosecutor v. Oie Hee Koi [1968] AC 829 at 852. Long and the unreported decisions of the Court, to which I have referred to in relation to ss.412 and 478 have all regarded the time limit as mandatory. Accordingly, the Court has no jurisdiction to review a decision which is reviewable under ss.475 and 476 unless the application for review is lodged within 28 days of the applicant being "notified" of the decision as enunciated in Long. When was the applicant notified of the decision? On 21 December 1995 the IRT posted the written statement of the decision prepared by it in accordance with s.368(1). The letter was sent to the incorrect addressee and was not opened or read by the applicant prior to 5 February 1996. Accordingly, for the reasons set out earlier, he was not "notified of the decision" of the IRT for the purposes of s.478(1) prior to 5 February 1996. On 5 February 1996 an officer of the IRT informed the applicant of the decision and gave him a copy of the written statement of the decision. Had nothing more occurred on that occasion there could be no doubt that the applicant would have been notified of the decision of the IRT, for the purposes of s.478(1), on 5 February 1996. However, simultaneously the applicant was informed by the IRT officer that - "as it had been 28 days since the decision was made [he] could no longer appeal the decision to the Federal Court..."

[10]

The applicant contended that the date of notification, for the purposes of s.478(1), was 10 April 1996 with the consequence that the Application was lodged with the Court within 28 days of that date. An entitlement to be informed of the right of review? The applicant's counsel submitted that the statutory provisions, to which I have referred, import an obligation that notification of the decision requires an accurate notification of the right to review it. I am unable to accept that submission. Section 368 sets out the matters which are required to be the subject of the IRT's written statement. It does not expressly or impliedly require any statement as to review rights. There is nothing in s.478 or any other provision of the Act which requires that an applicant be informed of his or her right of review. Accordingly, there is no basis for interpreting "notified of the decision" as meaning "notified of the decision and of the right to review it." Estoppel? It was next submitted on behalf of the applicant that the representations of the IRT officer estop the respondent from contending that the application was lodged out of time. I have already concluded that the provisions of s.478(1)(b) and (2) go beyond mere matters of machinery. Accordingly, the doctrine of estoppel cannot be relied upon by a Court so as to relieve against non-compliance with a requirement that the statute intends be satisfied: see s.478(2), Formosa v. Secretary, Department of Social Security (1988) 46 FCR 117 at 124-5 per Davies and Gummow JJ and Minister for Immigration and Ethnic Affairs v. Polat (1995) 57 FCR 90 at 104-107 per Davies and Branson JJ and at 111 per Whitlam J. In any event estoppel cannot operate, directly or indirectly, to confer any jurisdiction or power on a Court or public authority which it does not otherwise have: see Wade and Forsyth Administrative Law (7th Ed. 1994) at 270 and 392. In such cases, as was suggested by Wade and Forsyth at 376 and De Smith Woolf and Jowell, Judicial Review of Administrative Act (5th Ed. 1995) at 566, an appropriate remedy for misleading advice might be compensation, rather than estoppel. Accordingly, the Federal Court has no jurisdiction or power to review a decision or application lodged more than 28 days after the applicant is "notified of the decision" for the purposes of s.478.

[11]

Has the applicant lost his right of review? The logic of the respondent's submission is simple and compelling. At the latest the applicant was notified of the decision on 5 February 1996. His application was lodged more than 28 days after that date. Accordingly, by reason of s.478, the Court has no jurisdiction or power to review the decision of the IRT. If there is an answer to the submission, and the unfairness and injustice to the applicant that flows from it in the circumstances of the present case, it must lie in the construction and operation of s.478 in its statutory context. I turn to examine that matter a little more closely. The IRT is established under Part 6 of the Act. It consists of its members (s.394) but has a Registrar, Deputy Registrars and other officers who have such duties and functions as are provided for under the Act or as the Principal Member directs (s.408). The majority in Long concluded that notification of a decision of the IRT for the purposes of s.478 did not require the giving of a written statement to the applicant under s.368(2). However, it does not follow from that conclusion that there is no connection between the operation of the two sections. The IRT's duties in respect of a decision are - • to make the decision (ss.348 and 349); • to prepare a written statement of the decision (s.368(1)); • to give the applicant and the Secretary of the Department a copy of the written statement (s.368(2)); • to publish the decision (s.369). Sections 475, 476 and 479 entitle an applicant in the IRT and the Minister to make application for the review of the decision of the IRT by the Federal Court. Section 478 requires that any application for review must be lodged within 28 days of the applicant being notified of the decision. It is abundantly clear from the statutory scheme, to which I have referred, that notification of the decision for the purposes of s.478 was expected, if not required, by the legislature to be - • by the IRT; • no later than 14 days after the decision is made; • by delivery of the written statement of the decision. Although the majority in Long accepted that notification might be by some other means (e.g. informal communication), that does not derogate from the statutory scheme which imposes a duty on the IRT to cause notification of the decision to be given to the 2 potential applicants for review. In that regard I treat notification to the Secretary as equivalent to notification to the Minister. In performing that duty the IRT is empowered to take steps under the Act to cause the 28 day period, under s.478, to commence to run. When the IRT, by one of its officers, exercises that power, unlike a notification which may be made outside the statutory framework by some third party, it is doing so in fulfilment of a function conferred on it under the statute for the purpose of enabling the time for review of its decision to commence. The process of notification pursuant to s.368 may not be exhaustive of the notifications that might occur for the purposes of s.478 but it is the only process of notification provided for under the Act. The sole, or at the least the primary, statutory purpose of "notification" by the IRT of the decision, whether under s.368 or otherwise, is to enable the person notified of the decision to consider the decision, and if so advised, apply to review it within 28 days of the notification. Whilst I can accept the Minister's submission that notification is also for the purpose of informing the parties of the outcome of the review so as to enable them to organise their affairs accordingly, in the statutory context that aspect of notification is a subsidiary or incidental purpose. It follows from the foregoing that a notification of the decision by the IRT, for the purposes of s.478, which includes or is accompanied by an incorrect or untrue statement that there is no right of review or that the time for review has expired, substantially frustrates or negates the primary statutory function of the notification. These observations are of significance in the present case. The literal construction of s.478, which is contended for by the Minister, would produce precisely the opposite result to that intended by the legislature. Reverting to Kafka's door-keeper - the door to the Law would be and would remain shut to the very person for whom it is to provide access to the Law. There is an alternative construction open. It is that a notification, for the purposes of s.478, must be a notification of the decision which does not or is not calculated to frustrate or negate the entitlement of the person notified of the decision to apply to the Court for its review. Such an implication is consistent with the suggestion of Jenkinson J in Long at 307 that s.478(1)(b) and the scheme for judicial review under Part 8 - ......... may perhaps be allowed an influence in determining the proper construction of the word "notified", so as to require, for example, that the communication be intelligible to the person adversely affected by the decision.

[24]

There is no such intractability in the language of s.478 nor is that language inconsistent with the interpretation which I have concluded is legitimate and necessary to give effect to the intention of the legislature. The "notification" on 5 February 1996 was carried out in a manner which had the inevitable effect of frustrating or negating the applicant's entitlement to review. In the circumstances of the present case, time only commenced to run under s.478 when the applicant became aware that the advice, that he had no right of review or appeal, was or might not be correct. That occurred on 10 April 1996. Accordingly, the application was lodged within time and the Court has jurisdiction to review the decision of the IRT. Improper purpose? There may be an alternative way of reaching the same conclusion. Under the statutory scheme, to which I have referred, the IRT is given a power to notify an applicant of its decision for the purposes of s.478. That power, as with any other statutory power, must be exercised for the purpose for which it is conferred. Accordingly, if and when exercised for an ulterior or improper purpose, the exercise of the power is null, void and of no effect: see Arthur Yates and Company Pty. Ltd. v. The Vegetable Seeds Committee and others (1946) 72 CLR 37. A notification of the decision under s.478 has the statutory function of fixing the time within which the person notified of the decision may apply to review it under ss.475 and 476. The statutory "act" of notification under s.478 might be said to be the exercise of a statutory power to commence the period during which an application for review might be lodged. If so, the power conferred by statute must be exercised in conformity with that purpose. In the present case the officer of the IRT did not exercise the power to notify the applicant of the decision for the statutory purpose of enabling him to apply for a review of it, if so advised. Rather, it might be said, she notified him of the decision for a purpose which included the purpose of incorrectly informing him that he had no right of review. That purpose is one which was not only ulterior to the statutory purpose; it is antithetical to it. If that purpose is a substantial purpose it can invalidate a notification for the purposes of s.478: see Thompson v. Randwick Corporation (1950) 81 CLR 87 at 106 and Samrein Pty. Ltd. v. Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 at 468-9. The fact that a notification was also for the purpose of informing the applicant of the outcome of the IRT hearing might not be to the point if the ulterior purpose is a substantial purpose. Accordingly, in such circumstances where the notification is relied upon for the purposes of s.478, it might be void and therefore not have the effect of fixing the period for review under the section. However, as I have found in favour of the applicant on the basis of the proper construction of s.478 it is unnecessary to determine the application before me on this ground.