Alkaab v Minister for Immigration and Multicultural Affairs

[1998] FCA 763

LAYLA ALI KHUDAIR ALKAAB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. NG 39 of 1998
FED No.763/98
Number of pages - 7
Migration

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

TAMBERLIN J

Migration - jurisdiction - objection to competency - application to Immigration Review Tribunal for review of decision - time for lodging application determined by notification of decision by respondent - notification is taken to be duly given to applicant by reference to posting decision to last address for service provided by applicant in connection with his or her application for review - effect of Migration Regulation 5.03(1) - whether decision is taken to be received by applicant on seventh day after date of decision - whether 28 day period for lodging application for review begins to run from date application is taken to be received.

Migration Act 1958 (Cth), s 478

Migration Regulations rr 4.40 and 5.03

Migration Regulation (Amendments) Statutory Rules 1997 No 109

Federal Court Rules O 54 B r 2

Nguyen v Minister for Immigration and Multicultural Affairs (1996) 68 FCR 437

Kamkar v Minister for Immigration for Multicultural Affairs (1996) 71 FCR 424

Chun Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386

Santos v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 229

Nahia Tabet v The Minister for Immigration and Multicultural Affairs (unreported, Mansfield J, 23 June 1997)

Milan Kumar Shrestha v Minister for Immigration and Multicultural Affairs (unreported, Sackville J, 13 October 1997).

SYDNEY, 18 May 1998 (hearing), 2 July 1998 (decision)

#DATE 2:7:1998

Appearances

Counsel for the Applicant: Mark A Robinson

Solicitor for the Applicant: Barlow and Company

Counsel for the Respondent: Lucy McCallum

Solicitor for the Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The objection to competency be dismissed. 2. The respondent pay the applicant's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

TAMBERLIN J

This case calls for consideration of time limits imposed by s 478(1) of the Migration Act 1958 (Cth) ("the Act") and the operation of the Migration Regulations, which restrict the time within which application for judicial review can be made.

This application is made by way of an Objection to Competency belatedly filed, four days before the hearing, on behalf of the Minister. The Objection filed on 14 May 1998, was raised many months out of time. However, because the matter raises a question of jurisdiction it is necessary to first determine the issue as to competency.

The visa applicant is Ms Najwa Dahrab, a 39 year old female Kuwait citizen, who at the date of the primary application was employed as a translator by the Ministry of Foreign Affairs of the Government of Kuwait. She is presently living in Kuwait. She has a Bachelor of Arts degree, majoring in English language and literature, conferred by Kuwait University in 1983. She has applied to migrate to Australia under a class of visa known as the Concessional Family (Migrant) Class AJ Visa Sub-Class 105. Her application was refused by a Ministerial delegate.

This application is brought by Mrs Layla Alkaab ("the review applicant") under s 476 of the Act. Review is sought of the decision made by the Immigration Review Tribunal ("the IRT") on 16 December 1997, dismissing the application.

The Objection to Competency is founded on the requirements of s 478, which provides:

"478 (1) An application under section 476 or 477 must: (a) .... (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 ... an applicant to lodge an application outside the period specified in paragraph (1)(b)." (Emphasis added)

The section is mandatory. By reason of subsection (2) failure to comply with the time requirement precludes review of the decision by the Federal Court. The Act requires the Court to refuse any application to extend time, even if the circumstances would otherwise justify an extension.

It is common ground that the decision of 16 December 1997 was sent by the IRT to Mrs Alkaab, at Level 7, 70 William Street, Sydney, NSW, 2000. It is also common ground that the Notification of Decision of the IRT was received at that address by the applicant's solicitors and agents, Messrs Barlow and Co.

The review applicant, Mrs Alkaab, is the sister-in-law of the visa applicant, Ms Najwa Dahrab, who resides in Kuwait. Mrs Alkaab resides in Western Australia. The IRT decision of 16 December 1997 was posted to both applicants from the offices of Barlow and Co. There is a file note in the papers which records that Ms Dahrab was told of the decision by telephone on 22 December 1997. On that day a letter was sent to Ms Dahrab from Barlow and Co, enclosing a copy of the decision. However, there is no evidence of either person receiving a copy of the decision prior to 23 December 1997.

The Application for Review was filed on 20 January 1998. Under the heading "Jurisdiction", in the Form as filed, there is a typewritten note under a sub-heading "Notification of decision" which reads:

"By record on computer, the Applicants' migration agents and solicitors received notification of the decision on 18 December 1997." (Emphasis added)

It is noted that the form does not assert that the applicant was notified of the decision on 18 December 1997 but only that her agents and solicitors were notified.

The submission for the Minister is that because the application was lodged more than 28 days from the date of Notification, which was said to be 18 December 1997, the Court has no jurisdiction to review the decision of the IRT.

The Application for Review identifies the person applying for review as Layla Alkaab and further states that the address to which letters should be sent is "Barlow and Co, Level 7, 66-70 William Street, Sydney, NSW."

THE REGULATIONS

The relevant Regulations are rr 4.40 and 5.03.

Regulation 4.40 reads:

"4.40 (1) A notice or statement to be given to an applicant in relation to a decision of the Tribunal is to be taken to be duly given if the notice or statement is given: (a) by posting it to the last address for service provided by the applicant in connection with his or her application for review; or (b) by posting it to the residential address provided by the applicant in his or her application for review; or (c) by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or (d) by leaving it at the place of residence of the applicant with a person who appears to live there and appears to have turned 16. (2) It is sufficient compliance with the requirement to give a notice or statement under subregulation (1) if a facsimile or certified copy of the notice or statement is so given." (Emphasis added)

Regulation 5.03 reads:

"5.03 (1A) This regulation applies to a document sent by the Minister, a Tribunal or a review officer to an applicant, of any kind, under the Act or these Regulations. (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 applicant at the time that the document is taken to be received at the address to which the document is sent, which is either sent: (a) if the document is sent from a place in Australia to an address in Australia - 7 days after the date of the document; or (b) if the document is sent from: (i) a place outside Australia to an address in Australia; or (ii) a place in Australia to an address outside Australia; or (iii) a place outside Australia to an address outside Australia; 21 days after the date of the document. (2) Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document." (Emphasis added)

Subsection 1A and the words emphasised in subsection 1 were inserted by the Migration Regulation (Amendments) Statutory Rules 1997 No 109, which commenced operation on 1 July 1997. The importance of this Amendment is considered below.

Counsel for the Minister says that it is clear the decision was in the possession of Barlow and Co from 18 December 1997, and that they had lodged the Application for Review as solicitors on the record. The document was notified to that firm more than 28 days before the Application for judicial review was lodged. It is submitted by Counsel for the respondent that further support for the Minister's submission that the Application was not lodged within the period of 28 days can be derived from the fact that the Application for Order of Review Form expressly refers to the solicitors receiving notification of the decision on 18 December 1997.

Counsel for the review applicant, in response, primarily relies on the provisions of reg 5.03(1), which is set out above. He submits that the decision is a "document" within the meaning of that regulation and that for the purposes of the Act, which of course includes s 478(1), the decision must be taken to have been received by the applicant on the seventh day after the date of the decision, that is to say, on 23 December 1997. If that date is taken as the date of notification for the purposes of the subsection then the Application for Review, filed in this Court on 20 January 1998, falls within the 28 day period.

DISCUSSION

The operation and effect of reg 5.03 and related provisions have been considered in a number of recent judgments of this Court. These decisions relate to the regulation as it was framed prior to the July 1997 amendment. I have not been referred to any judgment in which the effect of the amendment has been examined.

In the first of the recent judgments, Moore J in Nguyen v Minister for Immigration and Multicultural Affairs (1996) 68 FCR 437, decided that the reference to "notification" in s 478 meant actual notification to the applicant. Accordingly, the application for review in that case was held to be within time. His Honour rejected a submission that reg 5.03 (in its unamended form) applied to fix the time of receipt of the notice as being 7 days after the date of the document. His Honour reasoned that the regulation applied "for the purposes of these Regulations" and therefore could not apply to the requirement of notification in the Act that time ran from notification: see the discussion by his Honour at 68 FCR 437, particularly at 441-443.

Nguyen was followed by North J in Kamkar v Minister for Immigration for Multicultural Affairs (1996) 71 FCR 424. His Honour there decided that service of the decision on the solicitor for the applicant was not notification to Mr Kamkar under s 478(1)(b). However, in that case, the application for review before the IRT did not give the solicitor's office as the address for service. It only gave the name, home address and postal address of the applicant. His Honour considered that by giving his own name and postal address the applicant indicated that he intended to request personal notification of the IRT decision.

Merkel J in Chun Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 applied the requirement of actual notification under s 478(1)(b) in the following circumstances. The notice of decision had been posted to the applicant's address on 21 December 1995, but the addressee's name was not that of the applicant. The applicant occupied the premises in question with other persons but did not open the envelope because it was not addressed to him. On 5 February 1996, he was handed a copy of the decision by an RRT officer and was told that he could no longer appeal the decision to the Federal Court. Until 10 April 1996, the applicant believed that he had lost his right of appeal. His Honour held that notification occurred on 10 April 1996 because it was not until that date that the notification of 5 February 1996 became "unburdened" by the misleading advice. In the present case, of course, there is no question of misleading advice.

In Santos v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 229, I held that for the purposes of notification under s 66(1) of the Act, reg 5.03(1) deemed the applicant to have received notice of the decision 7 days after the date of the document notwithstanding that this was a requirement of the Act and not the Regulations. However, in that case, the provisions required the Minister to notify the applicant of the decision in the prescribed way. The phrase "the prescribed way" referred to provisions of the regulations with the consequence that there could be no dispute that reg 5.03(1), as it stood before 1 July 1997, operated to deem notification to have been effected. By contrast with s 66, s 478(1) only refers to the applicant being "notified" of the decision and does not incorporate the regulations as to the giving of notice to the applicant. However, as a result of the July Amendment to reg 5.03(1), the regulation now applies to the requirements of s 478(1).

In Tabet v The Minister for Immigration and Multicultural Affairs (unreported, Mansfield J, 23 June 1997), which preceded the operation of the amendment, was held that reg 5.03 could not apply in respect of s 478(1) because the time limit was imposed by the Act and not by the Regulations.

More recently, Sackville J reviewed the relevant authorities in Shresta v Minister for Immigration and Multicultural Affairs (unreported, 13 October 1997). His Honour affirmed that reg 5.03(1), in its unamended form, did not operate in relation to the notification required by s 478(1)(b).

A review of the above authorities demonstrates a tension between the competing considerations which underpin the approaches taken to the notification provisions in the Act and Regulations. On the one hand these considerations include the desirability for jurisdictional certainty, efficiency, and uniformity in administrative and judicial review proceedings and, on the other hand, the avoidance of hardship and injustice arising from the imposition of arbitrary time limits based on deemed or constructive notification, which may not accord with the reality.

As Moore J points out in his comprehensive review of the operation of reg 5.03 in Nguyen: (68 FCR 437 at 443 ff) the Explanatory Memorandum on the introduction of that regulation in its original form, stated:

"The use of a set period (eg 7 days from the date of the notice) ensures that applicants can be told exactly when their review rights expire. In the past, it is possible that some applicants may have inadvertently missed out on review rights because they misunderstood notification provisions that required an applicant to calculate the relevant period from the date of postage. Regulation 5.03 will ensure that the Minister, clients, representatives and review bodies will know exactly when review rights expire."

The greater certainty anticipated in the above extract has not been achieved, as is readily apparent when regard is had to the decisions discussed above. This is not surprising given the wide-ranging spectrum of different circumstances and situations against which the time limitations need to be applied. There can be no doubt, having regard to previous decisions as to the time limitations, and in particular reg 5.03, that the July 1997 amendment was made in order to meet the perceived difficulties arising because the regulation did not apply in respect of limitations imposed by the Act, but only to time limits prescribed for the purposes of the regulations. With the July 1997 Amendments the balance shifted towards greater certainty.

The relevant document in the present circumstances is the decision dated 16 December 1997. Regulation 5.01 defines document to include a "notice or statement". By reg 4.40(1)(a) a notice or statement to be given to an applicant in relation to a decision of the Tribunal is to be taken to be duly given if posted to the last address for service provided by the applicant in connection with the application for review. In the present case, the address given was that of Messrs Barlow & Co, the solicitors for the applicant. They received it on 18 December 1997. The review applicant did not receive a copy on or before 23 December 1997. By reg 5.03 the decision of the Tribunal is taken to have been received 7 days after the date of the decision, namely 23 December 1997. This date is then taken or deemed to be the date of notification of the decision for the purposes of s 478(1)(b). There is no suggestion of misleading advice in this case, which might prevent the deemed receipt of the decision from operating as an effective notification to the applicant: cf Wang (supra). The application, having been filed on 20 February 1998 was, therefore, within the 28 day period, which commenced on 24 January 1998. For these reasons it was lodged within the prescribed time and the Court has jurisdiction to determine the Application for Review.

An alternative submission was advanced that it was not necessary to rely on the July 1997 amendment to reg 5.03 because s 478(1)(b) continued to require actual notification to the applicant. The evidence establishes that there was no actual notification until some time after 23 January 1998. However, in view of the conclusion I have reached above, it is not necessary to determine the merits of this argument.

FEDERAL COURT RULES - O 54B R 2

Counsel for the respondent referred to and relied on O 54 B r 2 of the Federal Court Rules, which provides as follows:

"2(1) An application to review a judicially-reviewable decision under the Migration Act 1958 must be in accordance with Form 56. (2) An application to review a judicially-reviewable decision under the Migration Act 1958 must indicate the date that the applicant was notified of the judicially-reviewable decision." (Emphasis added)

It is said that because the Application for Review in the present case referred to 18 December 1998, that is the date which must be taken to have been the date of notification. In my view, the statement on the application form cannot override the specific provisions of reg 5.03(1). In the present case the decision was sent within 7 days as required by sub-reg (2) of reg 5.03. Sub-regulation 5.03(1) applies for the purposes of both the Act and the Regulations. Of course, as Counsel for the respondents correctly points out, sub-reg 5.03(1) does not apply unless the document is sent within 7 days after it is dated. The language of par (2) makes it clear that reg 5.03 is directed to circumstances where that paragraph is satisfied. On the evidence in this case, it is clear that no steps were taken by the solicitors to actually notify the applicant prior to 22 December 1997, when Mrs Dahrab was informed of the decision by telephone, and therefore the statement on the application form cannot be taken as an admission of notification to the applicant. The decision itself was not posted until 23 December 1997.

OTHER MATTERS

Counsel for the Minister raised a question as to the insufficiency of the evidence concerning the sending of notice of the decision by Barlow and Co on 23 December 1997. The submission was that the evidence of Mr Froissard was incomplete because it only related to notice given to Ms Dahrab in Kuwait, the visa applicant, and did not give evidence as to whether notice was sent or given to Mrs Alkaab, the review applicant, who resides in Australia. However, this uncertainty was removed by subsequent evidence to the effect that the decision was posted to both persons on 23 December 1997.

One other submission advanced by Counsel for the Minister was that the furnishing of the decision to the solicitor was sufficient. This was done on 18 December 1997. I do not accept this submission. It is true that there is a statement on the application form which acknowledges service on the solicitors but this cannot be taken as evidence that notification was given to the applicant in circumstances where there is sworn evidence to the contrary which I accept. The requirements of s 478 and reg 5.03 are that notice is to be given to the applicant and not simply with a requirement notice to the solicitor or agent on behalf of the applicant. There is no reference in either the Act or the Regulation to service of a document upon agents being notification to the applicant of the decision either as to its terms or the reasoning embodied in it.

Accordingly, for the above reasons, I dismiss the Objection as to Competency. The respondent is to pay the applicant's costs of the Objection.