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

The applicant, who resided with other Chinese students at the address to which the letter was sent, saw the wrongly addressed envelope but did not open it. The applicant assumed, with reason, that the letter was for someone other than himself. By 5 February 1996 the applicant had become concerned that he had heard nothing about his case since the hearing before the IRT on 5 December 1995. He attended the counter of the IRT and spoke with an officer. The applicant's evidence, which accorded with the officer's file note, was as follows - "Accordingly, I attended the Immigration Review Tribunal and spoke with an officer of the Tribunal. The officer checked my file and informed me that the decision had been made on the 20th of December 1995 and posted to me on the 21st of December 1995. I informed the officer that I had not received a copy of the decision and she provided me with a copy of that decision and the covering letter which said I had 28 days from the date of the letter in which to appeal to the Federal Court. The officer then told me that as it had been 28 days since the decision was made I could no longer appeal the decision to the Federal Court and my status may be illegal. I advised the officer that I retained a valid Student Visa, which visa will expire in June 1997."

The applicant believed that he had lost his right to appeal against the IRT decision until he met with the Deputy Registrar of the IRT on 10 April 1996. The applicant's evidence, which accorded with the file note of the Deputy Registrar of the IRT, was as follows - "....... I say that some time after attending the Tribunal in February I discovered the envelope amongst papers in the lounge room of the flat I lived in and realised the decision had been incorrectly addressed. I felt that it was unfair that I was prevented from appealing the decision to the Federal Court when it was not my fault that the decision was not brought to my attention. I spoke with Mr Jesse Xu, the President of the Chinese Student Association, who suggested I attend the Immigration Review Tribunal again and speak with a Deputy Registrar. On his advice, I went to the Immigration Review Tribunal and spoke to the Deputy Registrar on the 10th April 1996. I explained that the decision in relation to my case had been sent in an envelope that was incorrectly addressed and I therefore had not opened it. I explained that I thought it was unfair that I should be prevented from appealing the decision to the Federal Court when I had no knowledge of the decision. The Deputy Registrar said that he would provide me with a letter setting out my situation and that I should ask the Federal Court to decide whether I could still file an Application for Review. Accordingly, within 26 days of the date of the letter from the Deputy Registrar, being the 10th April 1996, I filed my Application for Review with the Federal Court. I prepared the Application myself and filed it together with a brief statement prepared by me setting out the circumstances of the way in which the decision was notified to me."

The applicant lodged his application in the Federal Court on 5 May 1996. The respondent has applied for the dismissal of the proceeding on the ground that - • the application was lodged more than 28 days after the applicant was notified of the decision of the IRT; • accordingly, under s.478 of the Migration Act 1958 (Cth) ("the Act") the Court did not have jurisdiction to review that decision. The applicant was informed, and given a copy, of the decision on 5 February 1996. He failed to lodge his application for review within 28 days of that date. Did the incorrect information given to the applicant, by an officer of the IRT, on 5 February 1996 result in there being no notification of the decision on that date? Put another way the issue is whether the notification on 5 February, the function of which is to commence the 28 day period for review, constituted a notification for the purposes of s.478 when its function was to wrongly inform the person notified that the time for review has expired.

The Act Section 349 confers power on the IRT to make a decision, reviewing an IRT-reviewable decision, which is operative when made. Section 368 provides: 368 (1) Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraph 375A(2)(b) prepare a written statement that: (a) sets out the decision of the Tribunal on the review; (b) sets out the reasons for the decision; (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. (2) The Tribunal shall give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made. (3) .........

Decisions of the IRT and the Refugee Review Tribunal ("the RRT") are reviewable by the Federal Court under Part 8 of Division 2: see ss.475, 476 and 477. Section 478 provides: 478 (1) An application under section 476 and 477 must: (a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and (b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision. (2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).

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..."

The information was untrue. The falsity remained uncorrected until the Deputy Registrar of the IRT informed the applicant on 10 April 1996 that he would provide the applicant with a letter setting out his situation and that the applicant - "should ask the Federal Court to decide whether [the applicant] could still file an Application for Review".

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.

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.

Intelligibility, in the sense referred to by his Honour will enable the applicant to consider the decision, and if so advised, apply to review it within 28 days of the notification. Section 478 is not to be construed in isolation. As was said recently in another context in Collector of Customs v. Agfa-Gevaert Ltd. (1996) 141 ALR 59 by Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ at 68 in relation to statutory interpretation and construction - "Much depends on the subject matter and context of the phrase".

The construction of s.478 must be based on its content, the context in which it appears and its role in the overall scheme for statutory review of IRT and RRT decisions. Many of those decisions may have fundamental consequences for the life and future well being of the individuals concerned. In such circumstances there is particular force in the comment in Bennion on Statutory Interpretation (2nd Ed 1992) at 725 - A construction will not be allowed which would enable persons charged with a statutory power or function to act in such a way as to truncate or otherwise modify what the legislature intended.

The real point being made is that where a Judge concludes that the legislature could not have intended that a statute could operate in a manner which defeats its manifest object or purpose, then an alternative interpretation must be preferred. There is a substantial body of authority that supports that approach. In Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 CLR 297 several members of the Court declined to adopt a literal construction which would defeat the object or purpose of the enactment. At 311 Stephen J declined to adopt a literal application when to do so - will, in the words of Fry L.J., be to construe "the Act in order to defeat its object rather than with a view to carry its object into effect; Curtis v. Stovin.

In a much cited passage at 320-321 Mason and Wilson JJ said that departure from the ordinary grammatical sense is not restricted to cases of absurdity or inconsistency. Their Honours said at 321 that - when the judge labels the operation of the statute as "absurd", "extraordinary" "capricious", "irrational" or "obscure" he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.

These principles have been applied more recently. In MacAlister v. The Queen (1990) 169 CLR 324 Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ said at 330 - To give the words "an offence" in s.77 their literal meaning would defeat the purpose of the legislation and produce the unreasonable result that there was no right of appeal from the County Court against a s.70(b) order. Such a result was certainly not intended. On the other hand, if the words "an offence" are read as "his or her offence", as we think their context and the apparent intention of the section suggest they should be read, the provision has a sensible meaning which gives effect to its evident purpose. In Luke v. Inland Revenue Commissioners, Lord Reid, when confronted with a similar problem, said: "The general principle is well settled. It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result, that the words of the enactment must prevail."

In Saraswati v. The Queen (1991) 172 CLR 1, after referring to the passages from the judgment of Mason and Wilson JJ in Cooper Brookes which I have set out above, McHugh J said at 22 - Moreover, once a court concludes that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole including the policy which may be discerned from its provisions, it is entitled to give effect to that purpose by addition to, omission from, or clarification of, the particular provision: see Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay Ltd.; Jones v. Wrotham Park Settled Estates; Cooper Brookes; In re Lockwood.

See also Hospital Benefit Fund of Western Australia Inc. v. Minister for Health (1992) 111 ALR 1 at 6 per Wilcox, Burchett and French J, Kingston v. Keprose Pty. Ltd. (1987) 11 NSWLR 404 at 421-4 per McHugh JA, Centronics Systems Pty. Ltd. v. Nintendo Co. Ltd. (1992) 111 ALR 13 at 57 per Beaumont and Burchett JJ and Agfa-Gevaert at 68. There are numerous cases in which courts in the United Kingdom have applied similar principles to give effect to, rather than defeat or frustrate, the manifest intention or purpose of the legislature: see Bennion at 334-5, 711 and 723-5. This was particularly so where the narrow literal construction leads to an operation of the law that flouts common sense and justice. In such circumstances the Court does not disregard or override the statute but interprets it - "in accordance with the judicially presumed parliamentary concern for common sense and justice" per Ungoed-Thomas J Re: Maryon-Wilson's Will Trusts [1968] Ch. 268 at 282.

Very recently the High Court has had occasion to reiterate the role of "logic and common sense in matters of statutory construction": see Agfa-Gevaert Ltd. at 68-9 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ. Lord Diplock observed in "The Courts As Legislators" The Lawyer and Justice (Sweet & Maxwell 1978) at 274 - "if...the Courts can identify the target of Parliamentary legislation their proper function is see that it is hit; not merely to record that it has been missed."

Such considerations recently led Lord Templeman to comment in In re M. (A Minor) (1994) 2 A.C. 424 at 438 - My Lords, this appeal is an illustration of the tyranny of language and the importance of ascertaining and giving effect to the intentions of Parliament by construing a statute in accordance with the spirit rather than the letter of the Act.

See also Bennion at 549-50. In giving effect to these principles it has been long accepted that the legal meaning of an enactment includes what is necessarily or properly implied so as to give effect to the legislative intention gleaned from the language used: see Chorlton v. Lings (1868) LR 4 CP 374 at 387 per Willes J and Bennion 361-368. Where logic, common sense and justice require that a matter provided for under a statute ought only to occur after appropriate notice the courts have implied a limitation on the literal meaning.

In Hospital Benefit Fund the Full Court (Wilcox, Burchett and French JJ) in reliance on the passages I have cited from Cooper Brookes and Saraswati implied a limitation on the Minister's power to make a declaration that certain rule changes are not operative under the National Health Act 1953 (Cth) by requiring that the declaration be made within a reasonable time of the Minister becoming aware of the rule change. In University College v. Durdy (1982) 1 Ch. 413 it was held that a proper implication was legitimate to ensure that the purpose of a statutory provision was not frustrated. In that case an arbitrator was able to be appointed under the relevant statute without the parties being aware of the appointment, yet under the statute those parties were required to deliver their statement of case within 28 days of the "appointment". In concluding that time ran from receipt of notice of the appointment, rather than the appointment, Everleigh LJ said at 419 - A benevolent construction in accordance with natural justice is readily achieved by reading into the paragraph the requirement that a party must have notice before time begins to run against him.

Griffiths LJ at 424 stated that the enactment "implicitly" required the receipt of notice. The application of these principles and authorities in the present case results in it being legitimate and necessary to imply a condition in respect of a notification by the IRT, for the purposes of s.478. The notification must not be carried out in a manner which frustrates or negates the entitlement of the person notified to lodge an application for review of the decision within 28 days of the notification. Another way of putting the implication is that, as the sole or primary statutory function of a notification for the purposes of s.478 is the commencement of the 28 day period for review, it is an implied condition of the valid exercise of the power of notification that it not be exercised in a manner which frustrates or negates that function. In the present case I have confined my decision to a notification by the IRT or one of its officers as that is the only notification provided for under the Act. It is unnecessary to consider whether the implication I have found in s.478 might extend to a notification by any other person. I am satisfied that such an implication accords with logic, common-sense and principle. Moreover it gives effect to the legislative intention and avoids the capricious and unjust result of the interpretation contended for on behalf of the Minister. As was said by Beaumont and Burchett JJ in Centronics at 57 - "....... a capricious result should only be accepted if the language is "intractable": see Cooper Brookes at 320".

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.

Conclusion I have concluded that the Application was filed within 28 days of the notification to the applicant of the decision for the purposes of s.478. Accordingly, the objection to competency by the respondent fails and the motion by the respondent for the dismissal of the proceeding should be dismissed with costs. Thus, unlike Kafka's man from the country, the Law is accessible to Mr. Wang. I certify that this and the preceding 22 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel.

Associate: Date: Heard: 21 November 1996 Place: Melbourne Judgment: 13 February 1997 Appearances: Mr. T. Hurley instructed by Erskine Rodan & Associates appeared for the applicant Mr. C. Rawson of the Australian Government Solicitor appeared for the respondent