H v Minister for Immigration and Multicultural Affairs
[2001] FCA 906
•31 JULY 2001
FEDERAL COURT OF AUSTRALIA
H v Minister for Immigration and Multicultural Affairs
[2001] FCA 906
MIGRATION – REFUGEE CLAIM – JURISDICTION OF REFUGEE REVIEW TRIBUNAL TO REVIEW A DECISION OF A DELEGATE REFUSING TO GRANT A PROTECTION VISA TO THE APPLICANT – APPLICATION LODGED ON EIGHTH OR NINTH DAY AFTER DATE OF DELEGATE’S DECISION – FOUR DAYS DELAY IN TRANSMISSION OF A DOCUMENT OUT OF DETENTION CENTRE IN WHICH APPLICANT WAS DETAINED – WHETHER APPLICATION FILED WITHIN THE PERIOD PRESCRIBED BY THE REGULATIONS – INTERPRETATION OF REGULATIONS – DISTINCTION BETWEEN “SENDING A NOTICE” OF THE DELEGATE’S DECISION TO A NOTIFIED ADDRESS AND “HANDING A NOTICE” OF DECISION TO THE APPLICANT – COMPUTATION OF TIME IN THE PRESENT CASE – CONCLUSION THAT APPLICATION FILED OUT OF TIME AND TRIBUNAL LACKED JURISDICTION – OBSERVATIONS ABOUT POTENTIAL FOR INJUSTICE IN LEGISLATION FIXING A SHORT TIME FOR TAKING A PROCEDURAL STEP WITHOUT ANY PROVISION FOR EXTENSION OF TIME.
Migration Act 1958 ss 66, 412.
Migration Regulations regs 2.16, 4.31, 5.02, 5.03.H v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 40 of 2001
WILCOX J
31 JULY 2001
SYDNEY (HEARD IN PERTH)
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA
DISTRICT REGISTRY
W 40 of 2001
BETWEEN:
H
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
WILCOX J
DATE OF ORDER:
31 JULY 2001
WHERE MADE:
SYDNEY (HEARD IN PERTH)
THE COURT ORDERS THAT:
1.The Court record be amended to identify the applicant, in all published documents, only as “H”.
2.The application be dismissed.
3.The applicant pay the costs of the respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA
DISTRICT REGISTRY
W 40 of 2001
BETWEEN:
H
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
WILCOX J
DATE:
31 JULY 2001
PLACE:
SYDNEY (HEARD IN PERTH)
REASONS FOR JUDGMENT
WILCOX J:
The issue in this case is whether the Refugee Review Tribunal (“RRT” or “the Tribunal”) was correct in ruling it did not have jurisdiction to review a decision of a delegate of the Minister for Immigration and Multicultural Affairs refusing to grant a protection visa to the applicant.
The issue arises because of a combination of three factors:
(a)the short time (seven working days) allowed under the Regulations for a person in immigration detention to file an application for review of a decision of a delegate;
(b)the fact that nobody (neither the Tribunal, the Minister, nor anyone else) has a discretion to extend this time limit, whatever the reason for non-compliance with it; and
(c)unfortunate delays (including a four-day delay within the Department of Immigration and Multicultural Affairs itself) in taking the steps necessary to file the application for review.
The case turns on the proper construction of relevant provisions of the Migration Act 1958 and the Migration Regulations.
THE FACTS
The applicant claims to be a citizen of Iran who fears persecution from the Baseji if returned to that country. He arrived in Australia by boat on 27 September 2000. He was detained on arrival and sent to the Curtin Detention Centre near Derby, Western Australia.
On 12 October 2000 the applicant made an application for a protection visa. He claimed to be a “refugee”, within the meaning of the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol on the Status of Refugees. The applicant was assisted, in formulating his application, by a migration agent associated with Craddock Murray Neumann, solicitors, of Sydney. It seems Craddock Murray Neumann had been retained by the Department of Immigration and Multicultural Affairs (“DIMA”) to provide advice and assistance to a substantial number of newly arrived “boat people”.
The applicant was interviewed, in relation to his claims, on 21 October 2000. On 26 October a delegate of the Minister issued a decision rejecting his application for a protection visa. This was done in Melbourne. The delegate signed a letter notifying that decision and enclosing a statement of reasons and an intimation that the applicant was entitled to apply for review of the decision by the Refugee Review Tribunal. The letter was addressed to the applicant “c/- DIMA Business Manager, Immigration Reception and Processing Centre, Curtin, Derby WA 6728”. It seems the letter and enclosed documents were faxed that day to the detention centre. A copy of the letter was sent to Craddock Murray Neumann, apparently also by fax, on that same day.
An officer of Curtin IRPC handed the fax to the applicant at the detention centre. There was evidence before the Tribunal that this was done on Thursday, 26 October, although that evidence seems to depend on usual practice rather than any officer’s knowledge of the facts of this particular case. Certainly, the applicant received the fax not later than the following day, 27 October. I say that because it was accepted by the Tribunal that, on 27 October, the applicant had a telephone conversation with someone at the office of Dr Al Jabiri & Associates, migration agents, of Fairfield, Sydney. In that conversation the applicant retained that firm to act on his behalf in connection with an application to the Tribunal. According to its letterhead, Dr Al Jabiri & Associates is a division of Human Rights Services Pty Ltd.
On the following Monday, 30 October, Dr Al Jabiri faxed to the applicant, at the detention centre, a document known as “Form 956”. This is a form used to appoint a person to act as an applicant’s agent in dealings with DIMA. According to a fax notation on the document, it was sent by “Human Rights Services Australia” at 3.10pm on 30 October 2000. That would have been 12.10pm Western Australia time.
The applicant claimed he signed the Form 956 as soon as it was handed to him at the detention centre and that he requested a DIMA officer at the detention centre to transmit it back to Dr Al Jabiri. That claim is supported by the fact that the form bears a hand-written date, opposite the applicant’s signature, “30 Oct 2000”.
I note also that, in subsequent correspondence with the Tribunal, Dr Al Jabiri referred to a fax cover sheet prepared by Curtin IRPC, which Dr Al Jabiri sent to the Tribunal for perusal. This cover sheet is not in the documentary material placed before the Court, but Dr Al Jabiri’s comment about it has not been disputed. He said:
“It will be noted that it is dated 31/10/2000. But the Curtin IRPC transmission stamp clearly reads 3 November.”
The fact that the form was not transmitted by Curtin IRPC to Dr Al Jabiri until Friday, 3 November, is apparent from a notation on the form revealing receipt of the form by Human Rights Services Australia at 10.43am that day.
Dr Al Jabiri told the Tribunal that, upon receipt of the form appointing his firm as the applicant’s agent, he immediately faxed Craddock Murray Neumann requesting the applicant’s file. He told the Tribunal that Craddock Murray Neumann responded promptly and sent him the file by registered post. However, Dr Al Jabiri did not receive the file until Wednesday, 8 November.
When Dr Al Jabiri received the Form 956 on 3 November, he realised he did not have the applicant’s DIMA file number, a piece of information that is required for a valid application for RRT review. He telephoned the applicant at the detention centre and asked him to try to find out the file number. The applicant could not respond by fax because the detention centre charges a fax fee of $4 per page and he had run out of money. However, the applicant said he would try to telephone the number. In the event, Dr Al Jabiri did not hear from him before he received the file on 8 November. The file revealed the number. Dr Al Jabiri inserted it on the application form, signed the form on behalf of the applicant and faxed it to the Tribunal.
The Tribunal formed a preliminary view that the application for review was out of time. It invited submissions on the point and Dr Al Jabiri wrote a letter, dated 28 November 2000, in which he set out the history of the matter and argued the Tribunal should extend the last day for application by four days, in order to take account of the four days lost by the delay at Curtin IRPC in faxing the Form 956 to him.
The Tribunal conducted a hearing on 19 January 2001. Dr Al Jabiri provided a written submission relating to the merits of the applicant’s claim of a well-founded fear of persecution. This was supported by a statement provided by the applicant himself. Dr Al Jabiri also provided a written submission dealing with the delay in filing the application. He drew attention to s 420(1) of the Migration Act which provides that, in reviewing a decision, the Tribunal “must act according to substantial justice and the merits of the case”.
On 5 February 2000 the Tribunal issued its decision. The Tribunal found the delegate’s decision was notified on 26 October. This meant the application for review needed to be lodged not later than Monday, 6 November. As it was lodged on Wednesday, 8 November, it was two days out of time. The Tribunal held it had no discretion to extend the prescribed period for lodgment of an application for review; consequently, the Tribunal had no jurisdiction to hear the application for review.
On 14 February 2001 the applicant filed with the Court an application to review the Tribunal’s decision.
THE LEGISLATION
A decision by a delegate of the Minister to refuse a protection visa is an “RRT – reviewable decision”: see s 411(1)(c) of the Migration Act.
Section 412(1)(b) of the Act provides that an application for review of an RRT-reviewable decision must, amongst other things, be “given to the Tribunal within the period prescribed”. Subsection (4) provides that regulations made for the purposes of s 412(1)(b) “may specify different periods in relation to different classes of RRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).”
Regulation 4.31 relevantly provides:
(1)For the purposes of paragraph 412(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.
(2)A period mentioned in subregulation (1) commences on the day 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 in immigration detention on that day – 7 working days (beginning with the first working day that occurs on or after that day); or
(b)in any other case – 28 days.”
A note to reg 4.31(2) states that a notice sent under reg 4.31(2) is taken to be received at a time worked out under reg 5.03. That regulation applies, amongst other situations, to a document sent by the Minister to “an applicant, of any kind, under the Act or these regulations”: see sub-reg (1A). That must include an applicant for a protection visa. Sub-regulation (1) of reg 5.03 provides:
“(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 person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is either:
(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.”
SUBMISSIONS
The applicant appeared in person at the hearing before me, his appearance being by video-link with Curtin Detention Centre. The applicant was assisted by a Farsi language interpreter attending in court at Perth. However, unsurprisingly, the applicant was unable to make any useful submission about the issue of jurisdiction. I have had to consider for myself what might be said on his behalf about that matter.
It will be noted that, in the case of a document “sent from a place in Australia to an address in Australia”, under reg 5.03(1) the deemed date of receipt is seven days after the date of the document. If that provision applied to the present case, time for filing the application for RRT review would not have commenced to run until seven days after the delegate’s letter of refusal was faxed to the applicant at Curtin Detention Centre on 26 October; that is, until Thursday 2 November. On that basis, his application, filed on 8 November, would have been within time.
However, counsel for the Minister, Mr J C Curthoys, argues that reg 5.03 has no application to this case. He says it is necessary to draw a distinction between the sending of a notification of refusal and personal service of such a notification. Mr Curthoys draws attention to s 66(1) of the Act, which requires the Minister to notify the applicant of a decision to grant or refuse a visa “in the prescribed way”. Regulation 2.16 provides that, for the purposes of s 66(1) of the Act, 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 to 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; or
(d)by handing a notice of the decision to the applicant or a person specified by the applicant under subsection 43(4) of the Act.”
Mr Curthoys argues reg 5.03 applies only to a notification made under para (c), where the notification is made “by sending a notice of the decision” to the address provided to the Minister by the applicant. He says it has no application to a decision notified under para (d) “by handing a notice of the decision to the applicant” or the applicant’s representative. Mr Curthoys contrasts reg 5.03 with reg 5.02, which provides for service of documents on persons in immigration detention. Regulation 5.02 provides:
“For the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.”
CONCLUSIONS
Mr Curthoys’ construction argument seems to be correct. It is surprising that the drafter of the regulations used different verbs, in reg 5.02 (“giving it”) and reg 2.16(d) (“handing it”), for what is said to be the same action. However, in the present context, I agree they must be taken as having the same meaning. The contrast is between a document communicated by direct delivery to the person by a DIMA officer and a document communicated indirectly, by being sent through the post or by facsimile transmission.
Regulation 5.03(1) is directed to a case where the notification is by a document “sent” from one place to another. Where a document is sent by post or facsimile transmission, there may be uncertainty as to the time of its receipt by the addressee. So it is understandable that it was thought desirable to make a regulation deeming the document to be received at a particular time after the date of the document. This deeming provision applies regardless of the time of actual receipt. Contrary to the submission of Mr Curthoys, I think reg 5.03(1) applies even to a case in which it is established that, in fact, the notice was received within less than the prescribed number of days.
However, reg 2.16(1) draws a distinction between a notification being made by sending a notice to, or leaving a notice at, the last notified address, on the one hand, and, on the other, “handing a notice of the decision to the applicant” or the applicant’s representative. Where a decision is notified in the latter way, there should be no uncertainty as to the date of notification. Accordingly, there is no need for a deeming provision.
In the present case, it is clear that notice of the decision was handed to the applicant on 26 or 27 October 2000. The period of seven working days allowed for the filing of a application for RRT review commenced to run from that moment. Even if the document was delivered on 27 October, the prescribed time expired at midnight on 7 November. Consequently, the application was out of time when filed with the Tribunal on 8 November. It follows the Tribunal was correct in holding it had no jurisdiction to entertain the application for review.
The case points up the potential for injustice that is inherent in legislation that fixes a short time for taking a procedural step without conferring on anybody a discretion to extend that time. I do not criticize the fixing of a short time for filing an application for RRT review of a delegate’s decision, even a time as short as seven working days. It is important that everybody concerned with refugee applications acts with despatch. The problem arises out of the inflexibility of the prescribed rules. They make no allowance for the possibility of delay for reasons outside the control of an applicant. That possibility is not confined to persons in immigration detention, but it seems especially acute in relation to them. Detainees are in the hands of other people in relation to communication with the outside world, including with migration agents and the Refugee Review Tribunal. The evidence in this case shows that detainees at Curtin are not, themselves, allowed to fax documents. Presumably the same situation applies at other detention centres. The situation is understandable. However, it has the result that detainees have no control over transmission of documents. If transmission is delayed or misdirected, the applicant’s right to review may be lost; yet without any fault on the part of the applicant.
I do not suggest transmission errors and delays commonly occur in detention centres. I have no information about that subject. However, errors and delays arise in even the most carefully managed workplace. The intelligent approach is to provide a mechanism for rectification of any prejudice that may result from errors and delays, especially prejudice suffered by a person who was not at fault.
In the present case, the delay of four working days that occurred in the faxing by Curtin IRPC of the signed Form 956 to Dr Al Jabiri did not waste all the allowable seven working days. However, it seems to have been the critical element in the application becoming out of time. So the applicant suffered a serious prejudice for which he was not to blame and for which he has no redress. Moreover, this is not the worst possible case. It is not difficult to imagine a case where a document, even an application for review, is overlooked by an IRPC officer for the whole seven working days or is misdirected, so it is not received by the Tribunal within the time allowed under reg 4.31. Even in such a case, as I understand the position, nothing could be done to rectify the error. Perhaps the Minister might be persuaded to permit the applicant to start again, by lodging a second application for a protection visa: see s 48B of the Act. However, Mr Curthoys mentioned one possible difficulty about this; strictly speaking, an obligation to remove the applicant from Australia would have come into existence as soon as the decision on the first protection visa application became final: see s 198 of the Act.
I do not intend, by these comments, to intrude into the area of policy. I accept that the policy underlying the Migration Act and Migration Regulations is a matter for Parliament, not for courts. However, if a judge finds, in the course of determining a case, that legislation implementing that policy has the potential to visit serious injustice on individuals, it is the judge’s duty to call that situation to attention. With that in mind, and without making any formal direction about the matter, I express the confident hope that the solicitors acting in this case for the Minister will draw these comments to his personal attention.
DISPOSITION
As it is clear the Tribunal had no jurisdiction in this case, the application for review must be dismissed. No criticism may be made of the manner in which the litigation in this Court has been conducted on behalf of the Minister, so there is no basis for departing from the usual practice as to costs.
The order of the Court will be that the application be dismissed with costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate:
Dated: 27 July 2001
Counsel for the Respondent: J C Curthoys Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 July 2001
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