Kamkar, Hassan v Minister for Immigration & Multicultural Affairs

[1996] FCA 1086

CATCHWORDS

IMMIGRATION - Review of decision of Refugee Review Tribunal - Whether application filed within time - Application must be lodged within 28 days of the applicant being notified of the decision - Whether notification is actual or deemed by the regulations - Difference between notification for determining the time within which application for review must be filed and requirement that Tribunal notify the applicant of its decision

Acts Interpretation Act 1901, s 29
Migration Act 1958, ss 368, 430, 478
Migration Regulations, reg 4.40

Van Chuong Nguyen v Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, Moore J, 31 July 1996)

KAMKAR v MINISTER FOR IMMIGRATION
& MULTICULTURAL AFFAIRS
VG 556 of 1996

Before:           NORTH J
Place:             MELBOURNE
Date:              9 DECEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

VG 556 of 1996

B E T W E E N :

HASSAN KAMKAR
Applicant

AND

MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
Respondent

MINUTES OF ORDER

BEFORE:     North J
PLACE:        Melbourne
DATE:          9 December 1996

THE COURT ORDERS THAT:

The motion, notice of which was filed by the respondent on 30 October 1996, is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

VG 556 of 1996

B E T W E E N :

HASSAN KAMKAR
Applicant

AND

MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
Respondent

BEFORE:     North J
PLACE:        Melbourne
DATE:          9 December 1996

REASONS FOR JUDGMENT

On 5 September 1996, Mr Hassan Kamkar, the applicant, filed an application under s 476 of the Migration Act 1958 (the Act) for an order for review of a decision of the Refugee Review Tribunal. This decision affirmed the decision of the Minister for Immigration & Multicultural Affairs, the respondent, to refuse to grant Mr Kamkar a protection visa.

By a motion, notice of which was filed on 30 October 1996, the respondent sought an order that the application be dismissed. The issue raised by this motion is whether the application was filed within the time limited by s 478(1)(b) to make such application. More particularly, the issue is when the applicant was notified of the decision of the Tribunal.

Section 478(1)(b) reads:

“478. (1) An application under section 476 or 477 must:

......

(b)be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.”

Section 478(2) prevents the Court from extending the time within which an applicant may bring such application. It reads:

“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 facts concerning the notification are not in issue. Mr Kamkar engaged a solicitor and migration agent. When he changed his address, he advised his solicitor, who notified the Tribunal on 27 April 1996 that the new address was 27 Terry Avenue, Belgrave. On 30 July 1996, the Tribunal posted a copy of the decision and reasons to Mr Kamkar at that address. In fact, Mr Kamkar had shifted from that address by 30 July 1996. He had advised his solicitor, who did not advise the Tribunal. The letter was sent by certified mail, and a person at the Belgrave address signed a receipt for the delivery of the letter on 1 August 1996. On 30 July 1996, the Tribunal also sent a copy of the decision and reasons to the solicitor for Mr Kamkar. On 9 August 1996, Mr Kamkar rang his solicitor to find out about the progress of his application. He was told
that the decision of the Tribunal had been received, and his application had been rejected.

Mr Niall, who appeared as counsel for Mr Kamkar, contended that Mr Kamkar was notified of the decision for the purposes of s 478(1)(b) on 9 August 1996, when he was told by his solicitor that his application had been rejected. Consequently, the lodgment of his application on 5 September 1996 was within the 28-day period.

Mr Rawson, who appeared for the respondent, submitted that Mr Kamkar was notified of the decision for the purposes of s 478(1)(b) on 1 August 1996, when the letter was received at the last address of Mr Kamkar notified to the Tribunal. He relied on the obligation of the Tribunal to prepare a statement of reasons for decision, and to give the applicant a copy of the statement in accordance with s 430(1) and (2), which read:

“(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)sets out the decision of the Tribunal on the review; and

(b)sets out the reasons for the decision; and

(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 must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.”

He then relied upon regulation 4.40(1)(a) of the Migration Regulations, which reads:

“(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”.

Counsel for the respondent accepted the authority of the decision of Moore J in Van Chuong Nguyen v Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, 31 July 1996) that regulation 4.40 specified the manner of service but not the time of service. The time of service was governed by s 29 of the Acts Interpretation Act 1901, which provides:

“(1)  Where an Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

In this case, the date of delivery was proved so there was no occasion to rely on the deemed delivery in the ordinary course of post. The evidence showed that the letter was actually delivered on 1 August 1996.

Counsel for Mr Kamkar submitted that s 478(1)(b) required actual notification of the decision to the applicant. He argued that regulation 4.40 did not apply to the notification required under s 478(1)(b). Rather, it was intended to prescribe the way the Tribunal could comply with its obligation under s 430 to give a written statement of decision and reasons to the applicant. Thus, if the Tribunal followed the procedures set out in regulation 4.40, it would not be amenable to review under s 476(1)(a) on the ground that procedures required by the Regulations were not observed, even if the applicant did not actually receive the statement.

In my view, the 28-day period referred to in s 478(1)(b) commences from the day the applicant receives actual notification of the decision. That day may be earlier or later than the date on which the Tribunal complies with its obligations under s 430. The deemed giving of a notice or statement under regulation 4.40 does not apply to s 478(1)(b). The reasons for this conclusion depend upon the terms of regulation 4.40 and the proper construction of s 478(1)(b) in the context of the scheme of the Act. I will now examine each of these matters.

Regulation 4.40 is part of Division 4.3 of the Regulations, which is headed “Service of Documents”. The subject matter of the Division and the regulation is the prescription of modes of service of documents. The regulation is thus an adjunct to the provisions of the Act which impose an obligation on the Immigration Review Tribunal and the Refugee Review Tribunal to give an applicant a copy of a statement of a decision and the reasons (ss 368(2) and 430(2)). The regulation specifies how that obligation may be discharged. In contrast, the subject matter of s 478(1)(b) is the regulation of the time within which an applicant may bring an application for review. It does not establish an obligation to give notice. The time of notification of the decision is used to identify the start of the period within which an application may be brought. The subject matter of the section does not suggest that the provisions of regulation 4.40, which deal with a different subject matter, should play any role.

Further, s 430(2) requires the Tribunal to give the applicant a copy of the statement prepared under s 430(1) within 14 days after the decision is made. Regulation 4.40 provides that 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 certain modes of service are followed. The similarity in language is clear. Both the section and the regulation concern the “giving” of a “statement”. The same language is used in s 368(2), in respect of the Immigration Review Tribunal. Regulation 4.38 has the effect that regulation 4.40 also applies to the Immigration Review Tribunal. In contrast, there is no linguistic point of contact between s 478(1)(b) and regulation 4.40. Section 478(1)(b) does not prescribe that the time for bringing an application commences when the applicant is given a statement required under s 368(2) or s 430(2). Again, this points to the conclusion that regulation 4.40 was not meant to play a role in respect of s 478(1)(b).

If the Regulations intended to prescribe that the notification referred to in s 478(1)(b) could be achieved by something less than actual notification, there would have been a regulation dealing with the subject matter of commencement of the running of time for the bringing of an application, and it would have dealt with the concept of notification. Instead, regulation 4.40 deals with a different subject matter, namely, the service of documents, and a different concept, namely, the giving of a statement of decision and reasons.

The scope of regulation 4.40 just outlined conforms with the scheme of the Act. Where the Act requires notification, but permits something less than actual notification, it expressly states the position. Thus, s 53(1) and (2) requires an applicant for a visa to provide an address for service for communication from the Minister. Section 53(3) reads:

“If the applicant or interested person purports to communicate anything to the Minister in a way that is not the prescribed way, the communication is taken not to have been received unless the Minister in fact receives it.”

Further, where the Act requires notification, but allows for the prescription of something other than actual notification, it expressly provides for the method of notification to be prescribed. Thus, s 343(1) provides for notification of a decision made by a review officer under the internal review procedure, as follows:

“When the review officer makes a decision, he or she is to notify the applicant of the decision in the prescribed way.”

Regulation 4.07 then provides for deemed notification in limited circumstances. The very same formula is used in respect of the requirement that the Minister notify applicants of various decisions, such as the decision to grant a visa (s 66(1), regulation 2.16(1)), the decision to cancel a visa (s 127(1), regulation 2.45), the decision to cancel a visa where the non-citizen applicant is outside Australia (s 129(2), regulation 2.47) and the decision to cancel a revocation of visa (s 132, regulation 2.49). From this scheme, it appears that the Act intends actual notification unless the Act itself provides for some other form of notification, or it expressly allows regulations to prescribe some other form of notification.

Another indication that the word “notified” in s 478(1)(b) requires actual notification, and that regulation 4.40 was not meant to apply to the section, is to be found in the equivalent sections which limit the time for bringing reviews by the internal review process (s 339(1)(b)), in the Immigration Review Tribunal (s 347(1)(b)), and in the Refugee Review Tribunal (s 412(1)(b)). Each of these sections is in relevantly the same terms. By way of example, s 412(1)(b) reads:

“(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”.

The form of these sections is relevantly the same as s 478(1)(b). Each of the sections uses the word “notified” or “notification”. In each case, the context is the same, namely, setting a commencement point for the running of time within which to commence a review. It is most unlikely that the words were used in different senses in each of these sections. Yet, if regulation 4.40 is to apply to s 478(1)(b), then, for instance, each of regulations 2.16, 2.45, 2.47 and 2.49 referred to earlier would establish the times of notification for commencement of internal reviews under s 339(1)(b), and regulation 4.07 would establish the time for commencement of some reviews before the Immigration Review Tribunal under s 347(1)(b). This would give the term “notification” different meanings for each of those sections, because some of the regulations make different provisions for what constitutes notification. For instance, regulations 2.16, 4.07 and 4.40 all make such different provisions. In my view, it is more likely that notification has a uniform
meaning in those sections providing for a time within which a review may be instituted following notification of the decision.

Finally, if s 478(1)(b) contemplates notification of the decision of the Tribunal to the applicant without the applicant actually knowing of the decision, the applicant may lose the opportunity to commence a review without any fault, and without knowing that the opportunity has passed. An applicant would be regarded as having been notified if the applicant was lying in hospital in a coma when the decision was posted to the residential address of the applicant. Upon awakening, after six weeks, the applicant would have lost the right to bring a review. This type of result would be particularly harsh and, seemingly, unjust. The issues at stake in many review cases are of great personal importance in the lives of the applicants. The grounds upon which reviews may be brought involve allegations of serious errors by decision-makers, such as errors of law, acting without any evidence, or acting in accordance with a policy without regard to the merits of the case. Further, the Court cannot extend the time within which an applicant may commence a review. In all these circumstances, Parliament cannot have intended, without clear words, to deny an applicant a right of review without the applicant receiving actual notification of the decision. Such clear words do not exist.

The respondent contended that there were strong policy reasons in favour of construing s 478(1)(b) as including the deemed notification provided for by regulation 4.40. There is, of course, an administrative convenience for the respondent to be able to pinpoint a certain date as the commencement of the period for bringing of a review. But this administrative convenience could not have been intended, without clear words, to override the obvious claim of fairness flowing from the construction which I favour.

As I have said, the subject matter and language of regulation 4.40 indicate that it was not intended to apply to the determination of when the applicant was notified for the purpose of s 478(1)(b). Further, s 478(1)(b) and the scheme of the Act do not contemplate the requirement of actual notification being modified by regulation. In the circumstances, if regulation 4.40 was construed to apply to s 478(1)(b), the regulation would be invalid. It would be inconsistent with s 478(1)(b) and the scheme of the Act, and consequently outside the regulation-making power in s 504(1).

In Nguyen, Moore J considered whether a review against a decision of the Refugee Review Tribunal had been commenced within the time set by s 478(1)(b). The decision dated 25 May 1995 was sent by the Tribunal to the applicant by certified mail the day after. The post office attempted to, but could not deliver it, and, finally, the applicant collected it on 11 July 1995. He lodged his application on 25 July 1995. The Minister argued that regulation 5.03 applied to the notification of the decision so that the decision was deemed to have been received seven days after the date of the letter. Consequently, the review was commenced more than 28 days after the applicant was notified of the decision.

The main focus of the case was the applicability of regulation 5.03. His Honour held that the regulation did not apply to the notification required by s 478(1)(b) because the regulation applied “for the purposes of these Regulations”. The notification was not required by the Regulations, but rather by the Act.

His Honour also held that regulation 4.40 allowed service by post for the purposes of s 478(1)(b). The argument which was put in the present case, namely, that regulation 4.40 did not apply to s 478(1)(b), was not raised before his Honour. For reasons already stated, I do not agree with this step in his Honour’s reasoning. It regards the giving of the statement of the decision under s 430 as equivalent to the notification under s 478(1)(b). These two events are different and serve different purposes.

His Honour then held the time of notification was governed by s 29 of the Acts Interpretation Act 1901. The evidence showed that the letter was not delivered in the ordinary course of post, but rather on 11 July 1995. This date was therefore the date of notification. Consequently, in the particular case, the date of actual receipt of the letter by the applicant was the date of notification for the purpose of s 478(1)(b). This finding made it unnecessary for his Honour to determine whether a regulation which purported to allow for an imputed notification for the purposes of s 478(1)(b) would be within the regulation-making power granted by the Act. However, he said:

“As to the width of the regulation making power, I accept that s 504(1)(e) and (3) are terms that would enable a regulation to be made that would treat notification, for the purposes of s 478, as having occurred at a specified time. Given the ultimate conclusion I have reached it is unnecessary to deal with the detailed submissions to the contrary made on behalf of the applicant.”

Again, for reasons previously given, I do not agree with this tentative view expressed by his Honour.

In Vinod v Minister for Immigration & Cultural Affairs (unreported, Federal Court of Australia, 14 August 1996) Sackville J followed Nguyen in holding that regulation 4.40 applied to the notification referred to in s 478(1)(b). Again, the argument put to me in the present case was not put to Sackville J. His Honour was content to follow the decision of Moore J.

As the notification referred to in s 478(1)(b) means the date of actual notification of the decision, Mr Kamkar received that notification on 9 August 1996. Thus, the lodgment of his application for review on 5 September 1996 was within the 28-day period specified.

The respondent contended, in the alternative, that Mr Kamkar authorised his solicitor to receive notice of the decision for the purpose of s 478(1)(b). It was accepted by the applicant that if notification to the solicitor was notification for the purpose of s 478(1)(b), the application was lodged out of time. One version of the argument relied upon regulation 4.40(1)(c), which provides:

“(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:

......

(c)by giving it .... to a person authorised by the applicant to receive documents of that kind on behalf of the applicant”.

As I have held that regulation 4.40 does not apply to s 478(1)(b), I reject this argument also.
The other version of the argument was that Mr Kamkar authorised his solicitor to receive notification for the purpose of s 478(1)(b), irrespective of regulation 4.40. The respondent argued that the authority of the solicitor for Mr Kamkar to receive notice of the decision was evidenced by the application for review form completed by Mr Kamkar and lodged with the Tribunal. The form had provision for the name, home address and postal address of the applicant. These details were completed. Beneath these and towards the bottom of the first page of the application form the following question was asked:

“Are you being assisted by an adviser (for example a lawyer or a representative of a community group) in making this application?”

There was then space for the name of the adviser, title, organisation, address, phone and fax number. In the present case, only the address was completed. Then followed the question:

“Do you wish copies of correspondence from the Tribunal to go to your adviser?”

Underneath there was provision for a “yes” or a “no” box to be ticked. In the present case, a cross was placed in the “yes” box.

The absence of the name of the adviser presents a problem in viewing the form as evidence of an authority to a specified agent. But, in my view, in giving his own name and postal address, the applicant indicated that he intended that he would be notified of the decision of the Tribunal. His positive answer to the question concerning copies of correspondence indicated that he wanted correspondence to be forwarded
to his adviser as well as to himself. It did not indicate an authority for the Tribunal to send correspondence to the adviser in place of himself. Hence, service of the decision on the solicitor on 1 August 1996 was not notification to Mr Kamkar under s 478(1)(b).

Thus, the application for review was lodged within the time limited by s 478(1)(b). The motion, notice of which was filed by the respondent on 30 October 1996, is dismissed with costs.

I certify that this and the preceding
thirteen (13) pages are a true copy of the reasons
for judgment of his Honour Justice North.

Associate:

Dated:            9 December 1996

APPEARANCES

Counsel appearing for the applicant:        R. Niall

Solicitors for the applicant:                   Baker & Armstrong

Solicitors for the respondent:                 C. Rawson, Australian Government Solicitor

Date of hearing:  21-22 November 1996
Date of judgment:  9 December 1996