Coung Van Nguyen v Gerkens, M W, Refugee Review Tribunal

[1996] FCA 885

CATCHWORDS

IMMIGRATION - Refugees - Refugee Review Tribunal - Application for review of refusal of refugee status - Whether given to Tribunal within 28 days of notification of refusal of decision - Whether notification in English to applicant unable to read or write English is effective - Whether time limit mandatory or directory - Words and phrases - "notice", "lodged".

Migration Act 1958, s. 166BA

Migration (Review) (1993) Regulations, Reg. 43E

Migration (1993) Regulations, Regs 2A.11 and 2A.12

Goodyear Tyre and Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd [1958] 1 WLR 857 at 863

Cresta Holdings Ltd v Karlin [1959] 1 WLR 1055

Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) 83 ALR 449

Ren v Immigration Review Tribunal (1991) 33 FCR 261

COUNG VAN NGUYEN v M. W. GERKENS, REFUGEE REVIEW TRIBUNAL

VG 252 of 1994

Ryan J
Melbourne
8 October 1996

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY       )    No. VG 252 of 1994

)

GENERAL DIVISION                 )

BETWEEN:  COUNG VAN NGUYEN

(Applicant)

AND:     M. W. GERKENS,

REFUGEE REVIEW TRIBUNAL

(Respondent)

CORAM:    Ryan J

DATE:     Melbourne

PLACE:    8 October 1996

MINUTES OF ORDER

THE COURT ORDERS:

1. That the application be dismissed.

1. That the applicant pay the respondent's costs of the application, including any reserved costs, such costs to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY       )    No. VG 252 of 1994

)

GENERAL DIVISION                 )

BETWEEN:  COUNG VAN NGUYEN

(Applicant)

AND:     M. W. GERKENS,

REFUGEE REVIEW TRIBUNAL

(Respondent)

CORAM:    Ryan J

DATE:     Melbourne

PLACE:    8 October 1996

REASONS FOR JUDGMENT

RYAN J:   The applicant, who was born in Vietnam on 4 March 1958, seeks to review the decision of Mr M. W. Gerkens, Member of the Refugee Review Tribunal ("The Tribunal"), made on 18 July 1994 that the Tribunal has no power to entertain his application for review of the decision by a delegate of the Minister for Immigration and Ethnic Affairs ("the Minister") refusing the applicant refugee status and a domestic protection (temporary) entry permit.

Factual Background
The applicant who had left Vietnam and arrived in Australia on 12 April 1992 had been granted a temporary entry permit valid until 15 October 1992.  On 18 September 1992 an application was lodged with the Department of Immigration and Ethnic Affairs ("the Department") for refugee status (Form 306) and on 5 October 1992 for a Domestic Protection Temporary Entry Permit (DPTEP). The documents supporting his application were written in Vietnamese and accompanied by an English translation.  After the applicant had been interviewed by officers of the Department he was notified that:

I am writing to you about your application for refugee status and your application for;

. a Domestic Protection Temporary Entry Permit.

The reasons for the refugee status refusal are given in the attached decision record.  The other applications have also been refused because of the refugee status refusal.

You are entitled to apply to the Refugee Review Tribunal (RRT) for review of the decision to refuse refugee status and any associated visa or entry permit(s).  Details of the Tribunal's procedures may be obtained directly from the Tribunal.

Enclosed is a brochure about the RRT.  This tells you how to apply for review.

If you decide to apply for review, your application must be received by the RRT within 28 days of the date of receiving this letter (you are deemed to have received this letter 5 working days after the date shown on it).

...

On 28 September 1993 the applicant consulted a solicitor who advised him of his right to apply to the Tribunal and received instructions to make the application.  The application was prepared and posted to the Tribunal by ordinary post at some time after 6pm on 29 September 1993.  However, for some reason which does not emerge from the evidence it was not noted as having been received by the Tribunal until 18 October 1993.

By letter dated 11 November 1993 the Tribunal advised the applicant that his application having been lodged on 18 October 1993 was outside the 28 day period provided for by the
Regulations.  Hence, the application could not be accepted.  In relevant part, the Tribunal's letter stated:

An application for review by the Tribunal must be lodged within twenty-eight (28) calendar days of the notification to you of the original decision.  Where you were notified by post, the regulations allow a further five (5) working days for receipt by you of the decision. The Tribunal has no discretion to extend these periods.

Allowing five (5) working days for you to have received the original decision, the twenty-eight (28) day period to lodge an application for review by the Tribunal expired on 14 October 1993.  However, you did not lodge the application until 18 October 1993.

On 1 July 1994 the Tribunal, constituted by Mr M. W. Gerkens, conducted a hearing to determine whether it had jurisdiction to entertain the applicant's application for review.  On 18 July 1994 the Tribunal published a decision to the effect that it was precluded by the lapse of time before it received the application from proceeding to hear and determine it on the merits.  By way of identifying the relevant factual issue, the Tribunal recorded:

One possibility is that the documents were delayed in the post and did not arrive at the Tribunal until 18 October 1994.  If so, my observations above do not assist the applicant's case.  On the other hand, there is the possibility that the documents arrived at the Tribunal in the ordinary course of post and were temporarily mislaid in the Tribunal registry for a period in excess of two weeks.  Resolution of the question when the documents were received by the Tribunal depends on the relative degrees of probability of the two possibilities.

Legislation
Section 166BA of the Migration Act 1958 ("the Act") provides, so far as is relevant:

166BA.(1)  An application for review of an RRT-reviewable decision must:

...

(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;

Regulation 43E of the Migration (Review) (1993) Regulations as amended by S.R. No 176 of 1993 provides:

43E. (1) For the purposes of paragraph 166BA (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.

1. A period mentioned in subregulation (1) commences on the date 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:

(i)in custody under the Act on that date; or

(ii)detained in a processing area on that date;

7 working days (beginning with the first working day that occurs on or after that date); or

(b)in any other case - 28 days.

1. Subject to this regulation, an application must be lodged at a registry of the Tribunal:

(a)by posting the application to that registry; or

(b)by leaving it at the registry in a box designated for the lodgment of such applications; or

(c)by leaving it with a person employed at that registry and authorised to receive such documents; or

(d)by means of electronic facsimile transmission to that registry.

(4)An application posted in accordance with paragraph (3) (a) or transmitted in accordance with paragraph (3) (d) is not to be taken to have been lodged until it is received at a registry of the Tribunal.

The applicant's application was date stamped as having been received by the Tribunal on 18 October 1993 and entered in a diary maintained by the Tribunal on the same day.

Regulations 2A.11 and 2A.12 of the Migration (1993) Regulations contain a detailed code for the giving of notice of a decision by the Minister to refuse an application for refugee status.  It is common ground that the applicant's
application was of that character. Regulations 2A.11 and 2A.12 provide:

2A.11(1)   If the Minister decides to refuse a refugee status application or an application for review, the Minister must, in accordance with subregulation (2), give notice of the decision to the applicant.

(2)Notice must be given by:

(a)posting the notice to the person at the person's latest address for service provided in the refugee status application or application for review; or

(b)posting the notice to the person at the person's residential address provided in the application; or

(c)giving the notice:

(i)to the person personally; or

(ii)to another person duly authorised to receive documents on behalf of the person; or

(d)leaving the notice at the last known place of business or residence of the person with another person who is apparently:

(i)employed at, or an occupant of, that place; and

(ii)not less than 16 years of age.

2A.12If notice is given by post to a person in accordance with paragraph 2A.11 (2) (a) or (b), service is taken to have been effected if the person is in Australia - at the end of 5 working days after the day of posting.

Notice of Minister's Decision
By way of a finding of fact the Tribunal in its reasons of 18 July 1994 recorded:

I accept that the DIEA primary decision was posted to the applicant on 9 September 1993 as evidenced by the Australia Post Certified Mail Posting Receipt.

It can therefore not be disputed that notice of the decision was given to the applicant in accordance with Regulation 2A.11 and by force of Regulation 2A.12 is taken to have been effected at the end of five working days after the day of posting i.e. on 16 September 1993.

Was Notification Effective?
It was submitted on behalf of the applicant that, because he was unable to read or write English, he had not been given notice of the decision of the Minister because the purported notice posted on 9 September 1993 was wholly in English. Counsel for the respondent disputed this contention which he claimed was wholly without foundation as there was no statutory or common law basis for drawing a distinction for the purpose of deciding the efficacy of a notice between an addressee of a notice who could read and write English and one who could not.

I am unable to uphold the applicant's contention on this aspect.  It is significant that Reg. 2A.11 requires only the giving of notice of the decision to an applicant.  It does not require the Minister affirmatively to establish that the decision has come to the knowledge of the applicant. Moreover, the scheme of the Regulations contemplates that notice may be deemed to have been given in circumstances in which the decision might not actually have come to the knowledge of the applicant. As Lord Evershed M.R. observed in Goodyear Tyre and Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd [1958] 1 WLR 857 at 863:

The word "notice" to a lawyer, in my judgment, means something less than full knowledge.  It means, no doubt, that the thing of which a man must have notice must be brought clearly to his attention. What, in different cases, may be sufficient notice is a matter which will be decided when those cases come before the courts; ...

See also Cresta Holdings Ltd v Karlin [1959] 1 WLR 1055 where Hodson LJ at 1057 emphasised that "`notice' is not synonymous with `knowledge'". To uphold the applicant's contention in the present case would put each notice given by the Minister at risk of being defective according to whether a court subsequently determined that a particular recipient had sufficient knowledge of English to apprehend its import. In my view, the general effect of statutory provisions like Reg. 2A.11 is to require only that the notice be given in English in a sufficiently formal or official way to alert an ordinarily astute recipient who does not understand that language to its potential significance and to the need to have it translated or to obtain advice about it. I regard the notice in the present case as satisfying this requirement.

Lodgment of Application for Review
Sub-regulations 43E(3) and 43E(4) of the Migration (Review) (1993) Regulations applied on their face to require the present applicant to give his application for review to the Tribunal within 28 days on which the applicant was taken to have been notified of the Minister's decision i.e. by midnight on 14 October 1993.

In Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) 83 ALR 449, a Full Court of this Court considered the concept of "lodging" an application to the Administrative Appeals Tribunal for a review of a decision under the Customs Act 1901. Northrop J observed at 461:

Thus, in s68 of the Act, the word "lodged" is used in the sense of placing or depositing a document at the office of the registry or a Deputy Registrar. It appears to be the practice of the registry to allow this to be done by post. Whether the lodging is done by post or by depositing the document at the office, a concept of acceptance is required in a sense similar to that required with respect to the presentation of a document. There must be a physical acceptance of the document by an officer of the registry. Thus if an application is posted but not delivered to a registry, the application is not lodged. In all probability, it is lodged when it is received at the office of a registry. Similarly, a document deposited on a counter at the office of a registry may not be lodged, but if taken by an officer, or in other words received by an officer, it is accepted for the purpose of lodging.

What happened to the applicant's application between the time of posting and its recorded receipt by the Tribunal is not known.  It was recorded as being received on 18 October 1993. The evidence therefore does not require a finding that the application had been received at a registry of the Tribunal so as to have been "lodged" within the prescribed time.

Time Limit Mandatory or Directory?
Th remaining issue is whether the time limit stipulated by s. 166BA(1)(b) of the Act and by Reg. 43E of the Migration (Review) (1993) Regulations is mandatory or directory.

On behalf of the respondent it was submitted that there was no discretion to extend the time limit.  Reliance was placed upon the judgment of Neaves J in Ren v Immigration Review Tribunal (1991) 33 FCR 261. His Honour was there dealing with an application under s. 138 of the Migration Act  which provided for an appeal to this Court from the Immigration Review Tribunal on a point of law. The application was out of time and that, it was submitted, was no bar to its being
entertained by the Immigration Review Tribunal.  His Honour stated at 263:

There being no power, express or implied, in the Migration Act or, so far as I am aware, in any other statute empowering the court to grant an extension of time within which an appeal may be instituted from a decision of the Tribunal, I am compelled to the conclusion that the present application, in so far as it seeks an extension of time to institute such an appeal, cannot succeed.

On behalf of the applicant it was submitted that the present case could be distinguished from Ren's Case on the basis that it concerns an application for review by the Tribunal of an administrative decision whereas Ren involved the exercise of a statutory right of appeal from the Immigration Review Tribunal, the decisions of which were said to be more judicial in nature.  Because it was brought under legislation related to refugees, it was submitted on behalf of the applicant that the Court should strain more benevolently to find a discretion to extend to 18 October 1993 the time for lodging his application.

I am not oblivious to the distinction which Dr Corns, for the applicant, drew, but in each case the right to review the decision complained of is a creature of statute.  Had it been intended to confer on the Court a discretion to extend the time within which to appeal from a decision of the Tribunal, a drafting formula was readily at hand, as Neaves J noted in Ren in the Administrative Decisions (Judicial Review) Act for reproduction in the Act or Regulations. If a statute conditions a right upon compliance with some time limit or other mandatory requirement, a Court cannot remove that fetter by pointing to a policy consideration which it perceives would
be better effectuated were the mandatory requirement not imposed.  In the context of a requirement for service of a summons, Williams J in Posner v Collector for Inter-State Destitute Persons (Victoria) (1947) 74 CLR 416 observed at 490:

Section 56 of the Justices Act (WA) requires, with certain immaterial exceptions, that the summons must be served on the defendant personally. "Must" is a word of absolute obligation and occurs in a section which is concerned with a fundamental principle of justice.  It is not merely directory.

Although in a different context "must" may not attract that construction, I consider that by stipulating in s. 166BA of the Act that an application for review must be given to the Tribunal within the prescribed period, the legislature has obviously chosen to give paramount effect to the policy that it should be known within a certain, comparatively short, time whether an application for review is to be brought in respect of a particular decision in relation to a refugee. That policy has been allowed to prevail over that which Dr Corns invoked of allowing each applicant as full and unfettered a right of appeal as the Tribunal might consider, in the circumstances, he or she ought to have. For these reasons, I conclude that the Tribunal was bound to give effect to the time limit imposed in conjunction by s. 166BA and Reg. 43E.

Conclusion
It will be apparent from the reasons outlined above that the applicant has failed to establish any error of law by the Tribunal in its approach to the factual question of when the application for review was given to the Tribunal, or its application of the relevant legislative provisions to the conclusion which it reached on that question.  Accordingly, the application must be dismissed and the applicant should pay the respondent's costs.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.

Associate:

Date:

Counsel for the Applicant    :  Dr C. T. Corns

Solicitors for the Applicant :  Kuek & Associates

Counsel for the Respondent   :  Mr K. H. Bell

Solicitors for the Respondent  :     Australian Government Solicitor

Date of Hearing             :  23 February 1996

Date of Judgment            :  8 October 1996