Long v Minister for Immigration, Local Government and Ethnic Affairs
[1996] FCA 243
•17 APRIL 1996
CATCHWORDS
MIGRATION - Migration Act 1958 - protection visas - notification of a decision - whether notification must include delivery of written reasons for decision - whether application for review of decision lodged in time.
Administrative Appeals Tribunal Act 1975 s 29
Administrative Decisions (Judicial Review) Act 1977 s 11
Migration Act 1958 Parts 2, 5, 7, 8; ss 29, 36, 40, 41, 45, 53, 65, 66, 109, 116, 118, 119, 120, 128, 134, 140, 337-393, 410-486, 500, 501; sub-ss 36(2), 53(4), 65(1), 66(2), 66(3), 129(2), 134(1) and (7), 343(3), 367(1), 368(1), 368(2), 430(1), 430(2), 475(1), 479(a); paras 127(2)(a), 129(1)(a) and (b), 134(8)(c), 339(1)(b), 346(1)(c), 347(1)(b), 412(1)(b), 475(1)(a), 475(1)(b), 475(1)(c), 478(1)(a), 478(1)(b)
P. Matthew, "Retreating from the Refugee Convention", Treaty Making and Australia - Globalisation Versus Sovereignty, (N.S.W.: Federation Press, 1995)
Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs (1989) 169 C.L.R. 379
LONG GUAN CHUN V. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS AND MR M.W. GERKENS AND HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DG8 OF 1995
LI LIU YING V. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS AND MR M.W. GERKENS AND HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DG9 OF 1995
LONG GUAN JUAN V. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS AND MR M.W. GERKENS AND HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DG10 OF 1995
JENKINSON, LEE, BEAZLEY JJ.
MELBOURNE
17 APRIL, 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NORTHERN TERRITORY DISTRICT REGISTRY ) DG8 of 1995
GENERAL DIVISION )
On Appeal from a Judge of the Federal Court of Australia
BETWEEN:LONG GUAN CHUN
Appellant
AND: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
First Respondent
AND:MR. M.W. GERKENS
Second Respondent
AND:HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Intervener
CORAM: Jenkinson, Lee and Beazley JJ.
PLACE: Melbourne
DATE: 17 April, 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
The first respondent's costs of the appeal (including reserved costs) be paid by the appellant.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules)
IN THE FEDERAL COURT OF AUSTRALIA )
NORTHERN TERRITORY DISTRICT REGISTRY ) No. DG9 of 1995
GENERAL DIVISION )
On Appeal from a Judge of the Federal Court of Australia
BETWEEN:LI LIU YING
Appellant
AND:MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
First Respondent
AND:MR. M.W. GERKENS
Second Respondent
AND:HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Intervener
CORAM: Jenkinson, Lee and Beazley JJ.
PLACE: Melbourne
DATE: 17 April, 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
The first respondent's costs of the appeal (including reserved costs) be paid by the appellant.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules)
IN THE FEDERAL COURT OF AUSTRALIA )
NORTHERN TERRITORY DISTRICT REGISTRY ) No. DG10 of 1995
GENERAL DIVISION )
On Appeal from a Judge of the Federal Court of Australia
BETWEEN:LONG GUAN JUAN
Appellant
AND:MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
First Respondent
AND:MR. M.W. GERKENS
Second Respondent
AND:HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Intervener
CORAM: Jenkinson, Lee and Beazley JJ.
PLACE: Melbourne
DATE: 17 April, 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
The first respondent's costs of the appeal (including reserved costs) be paid by the appellant.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules)
IN THE FEDERAL COURT OF AUSTRALIA )
NORTHERN TERRITORY DISTRICT REGISTRY )
GENERAL DIVISION )
On Appeal from a Judge of the Federal Court of Australia
No. DG8 of 1995
BETWEEN:LONG GUAN CHUN
Appellant
AND:MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
First Respondent
AND: MR. M.W. GERKENS
Second Respondent
AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Intervener
No. DG9 of 1995
BETWEEN:LI LIU YING
Appellant
AND:MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
First Respondent
AND:MR. M.W. GERKENS
Second Respondent
AND:HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Intervener
DG10 of 1995
BETWEEN:LONG GUAN JUAN
Appellant
AND:MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
First Respondent
AND:MR. M.W. GERKENS
Second Respondent
AND:HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Intervener
CORAM: Jenkinson, Lee and Beazley JJ.
PLACE: Melbourne
DATE: 17 April, 1996
REASONS FOR JUDGMENT
JENKINSON J.
Three appeals heard concurrently against orders dismissing applications for review of decisions of the Refugee Review Tribunal.
Each of the three appellants is a lady of child-bearing age who left her native country, The Peoples' Republic of China, on a boat which brought the three of them to this country with their husbands and children. Each of them sought review of the refusal, by a delegate of the respondent Minister, to grant her a protection visa. Section 36(2) of the Migration Act provides that "[a] criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". In each case the Refugee Review Tribunal conducted the review, in compliance with the requirements of Part 7 of the Migration Act 1958, and in each case affirmed the decision of the delegate. Section 430 of the Migration Act 1958, which is in Division 5 of Part 7, provides:
"(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.
(3) Where the Tribunal has prepared the written statement, the Tribunal must;
(a)return to the Secretary any document that the Secretary has provided in relation to the review; and
(b)give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based."
Each of the appellants was at material times detained as an "unlawful non-citizen" under the provisions of Division 7 of Part 2 of the Migration Act 1958, because she had come within Australia without a visa. At material times the place of detention was Point Cook Immigration Reception and Processing Centre at Port Hedland. None of the appellants understood the English language. To each of them a Deputy Registrar of the Tribunal sent a letter and a copy of the written statement prepared by the Tribunal in compliance with s.430(1), all in the English language. Each letter read as follows:
"I enclose a copy of the Tribunal's decision on your application for review. A copy of the decision has also been sent to the Department of Immigration and Ethnic Affairs.
The Tribunal has decided that you are not a refugee, which means you are not entitled to a Protection Visa. Should you have any questions regarding your current status in Australia you should contact your regional office of the Department of Immigration and Ethnic Affairs.
You have a right of appeal against the Tribunal's decision to the Federal Court of Australia. Such appeal is available only on a point of law and must be made within 28 days of notification of this decision."
The substance of the letter was told to each appellant on 31 October 1994, in the Chinese language, which she understood, in the presence of the manager of the Centre. Section 478 of the Migration Act 1958 provides:
"(1) An application under section 476 of 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 application for review by this court of the decision of the Refugee Review Tribunal was in each case made under s.476. Each of the appellants' applications was lodged with a Registry of this court on 30 November 1994. If an appellant were "notified of the decision", within the meaning of those words in s.478(1)(b), on 31 October, 1994, this court had no authority to undertake review of the decision. Section 485 of the Migration Act 1958 provides:
"(1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by sub-section 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.
(2) Subsection (1) does not affect the jurisdiction of the Federal Court in relation to appeals under section 44 of the Administrative Appeals Tribunal Act 1975.
(3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part."
The decisions of the Refugee Review Tribunal here in question are "judicially-reviewable decisions", within the meaning of that expression in s.485.
Mr. C. McDonald, who appeared with Miss Gearin for the appellants, submitted, and the learned judge whose orders are the subjects of the appeals accepted, that the words "notified of the decision" of a Refugee Review Tribunal are not satisfied until the applicant for a protection visa has been supplied with a copy of the reasons for the decision. (Because his Honour had concluded, upon evidence to be noticed hereafter, that each appellant had been supplied with such a copy on 31 October 1994, he was not constrained to express a concluded opinion on this question.) That conclusion his Honour drew principally from sub-sections 430(1) and 430(2), which make it clear that compliance with the requirement of the latter sub-section brings into the hands of an applicant a written statement which includes the reasons for decision. The word "decision" in s.478(1)(b) must take its meaning, the learned judge considered, from the requirements of those two sub-sections.
The distinction between "decision" and "reasons for the decision" is maintained throughout the Migration Act 1958 : ss. 66, 367(1), 368 provide examples. Sub-section 367(1) provides:
"Subject to subsection (2), if the application is for review of a decision covered by paragraph (c) or (d) of the definition of Part 5 reviewable decision, the Tribunal must make its decision on review, and notify the applicant of the decision, within the prescribed period."
A decision of the Immigration Review Tribunal, which is the Tribunal to which reference is made in s.376(1), of the kind contemplated by that sub-section is a decision application for review of which by this court is made under s.476 : see ss. 337, 346(1)(c), 347, 348, 474, 475(1)(a), 476. The time within which such a decision must be made and notified to the applicant is 7 days : s.367(1) and reg. 4.26 of the Migration Regulations (Stat. Rule No. 268 of 1994). The requirement of s.368(2), that the giving of the written statement (setting out the decision and the reasons) by the Immigration Review Tribunal to the applicant be "within 14 days after the decision concerned is made", may be satisfied 14 days after satisfaction of the requirement of 367(1) that the Tribunal "must make its decision on review, and notify the applicant of the decision, within the prescribed period" of 7 days. Section 478 comprehends such a decision. Throughout Division 2 of Part 8, in which s.478 is found, the word "decision" is in my opinion used in a sense which excludes reference to reasons for the decision or to a written statement of the decision. In my opinion that is the sense in which the word is used in s.478(1)(b). By a means intelligible to each appellant - speech in the Chinese language - she was informed that the Refugee Review Committee had decided that she was not a refugee and that she was not entitled to the visa she sought. It was not suggested that an appellant did not understand, or did not believe, that the information thus communicated had come from the Tribunal, by means of the letter which the manager of the Centre had in his hands. In those circumstances it must be concluded, in my opinion, that each appellant was "notified of the decision", within the meaning of those words in s.478(1)(b), when that information was communicated to her.
Counsel for the appellants submitted that, since Part 8 of the Migration Act 1958 had ordained a scheme of judicial review, of administrative decisions about the entry into, or the exclusion from, Australia of persons claiming entry as immigrants and visitors and refugees, which was in most cases practically feasible only by reference to the reasons for decision, the construction of s.478(1)(b) ought to be influenced by the purpose of ensuring that the period for taking legal advice and, if seeking judicial review, for lodging the application was a reasonable period. That purpose could best be achieved, Mr. McDonald submitted, by understanding the words "notified of the decision" as requiring that the reasons for the decision be made known to the person adversely affected by the decision. In these cases the reasons were not made known to any of the appellants until a time less than 28 days before their applications were lodged with the Federal Court Registry. Those considerations 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. But they are not in my opinion considerations which justify disregard of the distinction which the legislature has consistently drawn in the Migration Act 1958 between "decision" and "reasons for the decision".
Present at the time when the appellants were told of the decision were two lawyers named Mr. Sandilands and Mr. Dobbie who had been assisting the appellants and the other persons on the boat which brought them to Australia. Concerning events on 31 October 1994 the learned trial judge stated the following findings:
"1.The Manager of the Detention Centre, Mr Richardson, met with each applicant in the presence of Mr Sandilands, Mr Dobbie, an interpreter, a social worker and some security guards in his office on 31 October 1994.
2.None of the applicants can read or speak English.
3.Each of the applicants had had a prior and continuing association with either Mr Sandilands or Mr Dobbie with respect to their applications for refugee status up to and including their applications to the Tribunal.
4.Mr Richardson handed the letter from the Tribunal and the copy of the Tribunal's reasons either to Mr Sandilands or to Mr Dobbie in the presence of each applicant and with the knowledge or each applicant.
5.No applicant sought to intercept those documents or to complain about Mr Richardson's conduct.
6.No applicant asked questions of or through the interpreter about the documents or her entitlement to the documents."
His Honour had previously set out the following part of an affidavit sworn by Mr. Sandilands which was in evidence:
"6.I was present on or about 31 October, 1994 along with another RACS lawyer, Nigel Dobbie, when all the `Wombat' applicants (including the Applicants herein) were given the results of their applications to the Refugee Review Tribunal. My best recollection of the process that took place is as follows.
7.The applicants were called into the office of the Detention Centre Manager, Mr Malcolm Richardson, in groups of three or four (usually, but not necessarily, family groups). Apart from myself, Mr Dobbie and mr. Richardson, an interpreter and the Detention Centre social worker, together with a couple of security guards, were also present in the office throughout. Mr Richardson spoke to each of them one by one. He gave each of them an oral summary of the transmission letter accompanying the Reasons for Decision, and may have read a part of it to some Applicants (although I do not have a clear memory of this). The summary was translated into Chinese. He then said to each of the Applicants words to the effect " `Your lawyer (meaning either myself or Mr Dobbie) will now have a few words to say to you. He will be able to talk to you about any further options or avenues of appeal that may now be open to you'.
8.Either myself or Mr Dobbie (depending upon which of us had had the most to do with that particular small group) then gave a short address to each group. In my cases I said to each group words to the following effect: `we will be getting together with each of you one by one the next few days to explain the Tribunal decision to you in detail and to discuss and to advise you on what avenues of appeal or other options may now be open to you'.
9.It was not possible to have any of the reasons for decision (including those of the Applicants herein) read and translated for the applicants on that day i.e. 31 October, 1994. The process for decision individually to each applicant, explaining them to the applicants and advising them of their legal rights and options, did not even begin until at least the following week. That process was a very long one and took several days.
10.None of the Applicants were given copies of the Reasons for Decision on the day Mr Richardson first advised them of the results of their RRT reviews. Both copies of the Reasons were retained by the lawyers (ie, myself and Mr Dobbie). In some cases a copy of the Reasons was later handed to the Applicant at the time the Reasons were explained in detail (ie on or after 7 November, 1994) while in other cases no copy was ever physically handed to the Applicant.
11.At no time did any of the Applicants herein provide either Mr Dobbie or myself with express authorisation (whether orally or in writing) to accept service of the RRT decision on their behalf. We took physical possession of both the Reasons and transmission letter in all cases purely as a matter of convenience, in that none of the Applicants would read or understand them until they were later explained to the Applicants by Mr Dobbie or myself and translated into Chinese."
There is nothing in his Honour's reasons for judgment to suggest that he did not accept that evidence. His Honour's conclusion was that each appellant had, by her conduct on and before 31 October 1994 -
"given authority to Mr Sandilands or Mr Dobbie, as the case may be, to act for her generally in respect of her application for refugee status and, included in that authorisation, was the implied authority to receive on her behalf all communications from the Tribunal touching upon or concerning her application.
........ ........ ........ ........ ........ .......
When the lawyers took the letter and reasons, telling the applicants `we will be getting together with each of you one by one over the next few days to explain the Tribunal decision... and to advise you on what avenues of appeal... may now be open to you', each applicant impliedly gave her consent to the lawyers conduct; perhaps her conduct did not amount to express authorisation as deposed to by Mr Sandilands, but it was implied authorisation to take delivery of the letter from the Tribunal and the enclosure to that letter which, as I have said, was entitled `Decisions and Reasons for Decision'. The combination of the events that I have summarized, that is, the manager's advice that the Tribunal had rejected their applications, the lawyers' statement that `we will be getting together' and the lawyers' taking of the letter and reasons, amounted to a notification of the decision in each case to the respective applicants."
Mr. McDonald attacked the learned trial judge's conclusion, not only by his submission that to be "notified of the decision", within the meaning of those words in s.478(1)(b), the applicant must be made personally aware of the reasons for decision, but also by the submission that a solicitor does not ordinarily have implied authority to receive a notification required or permitted by statute to be given to the client and that nothing in the evidence justified a conclusion that authority by any of the appellants to Mr. Sandilands or Mr. Dobbie to receive the notification contemplated by s.478(1)(b) was to be implied.
It is common ground that the documents, of the significance of which each of the appellants were informed in Chinese, in fact included reasons for the decision. If it be assumed that none of the appellants was given to understand by the interpreter that the documents included a statement of the Tribunal's reasons for its decision, yet a finding is clearly open on the evidence that each appellant understood that some documents concerning the decision rejecting her application had come from the Tribunal to her and were being taken away by one or other of Sandilands and Dobbie, who she believed to be a lawyer, and who was proposing to use the documents in order to be able in the near future to give her advice concerning her attempt to gain the right to live in this country. Upon such findings, her abstention from any indication through the interpreter that she wished some other course to be followed justifies, in my opinion, an inferred finding that she authorised the lawyer to take and use the documents sent to her, for that proposed purpose. Upon those findings the conclusion in my opinion follows that, if only by delivery to the appellant of the statement required by s.430 can the words "notified by the decision" in s.478(1)(b) be satisfied, her authority to the lawyer to take the documents and his reception of them from the respondent's agents constituted delivery to her. Those were, as I understand, in substance the findings and the conclusion of the learned trial judge. I should add that in my opinion the conclusion is unaffected by the circumstance that the relationship of lawyer and client did not, or that it did, at the time exist between Dobbie or Sandilands and any of the appellants. What is significant, for determining whether authority was conferred on the lawyer to take the documents, is the appellant's belief that he was a lawyer and that he proposed to use the documents in order to help her. The existence of those beliefs facilitates the drawing from the appellant's silence an inference that she was conferring that authority on the lawyer.
I would dismiss the appeal with costs.
I certify that this and the 13 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.
Associate
Dated: 17 April, 1995
IN THE FEDERAL COURT )
OF AUSTRALIA )
NORTHERN TERRITORY )
DISTRICT REGISTRY )
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
NO. DG8 OF 1995
B E T W E E N: LONG GUAN CHUN
Appellant
and
MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
First Respondent
and
MR M.W. GERKENS
Second Respondent
and
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Intervener
NO. DG9 OF 1995
B E T W E E N: LI LIU YING
Appellant
and
MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
First Respondent
and
MR M.W. GERKENS
Second Respondent
and
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Intervener
NO. DG10 OF 1995
B E T W E E N: LONG GUAN JUAN
Appellant
and
MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
First Respondent
and
MR M.W. GERKENS
Second Respondent
and
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Intervener
CORAM: JENKINSON, LEE, BEAZLEY JJ.
DATE : 17 APRIL, 1996
PLACE: MELBOURNE
REASONS FOR JUDGMENT
LEE J.
The relevant facts in these appeals are set out in the reasons for judgment of Jenkinson J. and it is unnecessary to repeat them. The issue in each appeal is whether the applications made to this Court under the jurisdiction
conferred on the Court by s.486 of the Migration Act 1958 ("the Act") were lodged within the time permitted by para.478(1)(b) of the Act. On the hearing of the applications a Judge of this Court (O'Loughlin J.) found that the applications had been lodged out of time.
Before determining the proper construction of s.478 of the Act it is necessary to ascertain the context in which it is to be construed by examining other provisions in the Act which deal with the review of decisions made under the Act, in particular Parts 5 and 7 of the Act.
By s.29 of the Act a Minister is given power to grant a non-citizen permission to remain in Australia, such permission "to be known as a visa". Section 45 states that a non-citizen who wants a visa must apply for a visa of a particular class. Sections 40 and 41 of the Act stipulate that regulations made under the Act may provide that visas may only be granted in specified circumstances and subject to specified conditions.
The appellants applied for "protection visas" which are defined as follows in s.36 of the Act:
"36.(1)There is a class of visas to be known as protection visas.
(2)A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection
obligations under the Refugees Convention as amended by the Refugees Protocol."
Section 65 of the Act conditions the power of the Minister to grant a visa under s.29 of the Act. Sub-section 65(1) states that if the Minister is satisfied that, inter alia, the criteria prescribed by the Act and the regulations have been satisfied the Minister is to grant the visa applied for and if not so satisfied is to refuse to grant the visa. Section 66 sets out how the Minister's decision is to be notified to an applicant:
"66.(1)When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2)Notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa - specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa - specify that provision; and
(c)unless subsection (3) applies to the aplication - give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 - state:
(i)that the decision can be reviewed; and
(ii)the time in which the application for review may be made; and
(iii)who can apply for the
review; and
(iv)where the application for review can be made.
(3)This subsection applies to an application for a visa if:
(a)the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b)this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4)Failure to give notification of a decision does not affect the validity of the decision."
Regulation 2.16 of the Migration Regulations ("the Regulations") describes how evidence of the visa is to be given to an applicant where the Minister has made a decision to grant a visa. In respect of notification of a decision to refuse an application for a visa under sub-s.66(2), reg.2.16 provides that the notice referred to in that sub-section is to be a notice sent, or left, at the last address given to the Minister by the applicant under s.53 of the Act, or handed to the applicant or a person specified by the applicant under sub-s.53(4). Section 53 reads as follows:
"53.(1)A visa applicant is to tell the Minister the address at which the applicant intends to live while the application is being dealt with.
(2)If the applicant proposes to change the address at which he intends to live for at least 14 days, the applicant must tell the Minister the address and the period of proposed residence.
(3)If the Minister sends or leaves a notification to the applicant at the address for the applicant given under subsection (1) or (2), the notification is taken to have been received by the applicant even if it was not received.
(4)An applicant may tell the Minister that a specified person at a specified address may be given notifications for the applicant about the application.
(5)Subject to the regulations, only one person may be specified, under subsection (4), in relation to an applicant at any particular time.
(6)If the Minister has been given the name and address of a person under subsection (4), the Minister must given notifications to the applicant by giving them to that person at that address and a notification so given is taken to have been received by the applicant.
(7)Subsection (6) does not prevent the Minister from communicating with the applicant, provided that the person specified under subsection (4) is notified of that communication.
(8)If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them."
It was submitted by counsel for the Minister that sub-s.66(2) of the Act only applied to "on-shore" applications for visas and that other provisions applied to "off-shore" applications. The Court was not referred to those provisions. In its terms s.65 applies to any valid application for a visa (see also regs.2.10, 2.11, 2.13, 2.15(1)(c), 2.15(3), 2.15(4)) and s.66 applies to all decisions made by the Minister under s.65 in respect of applications for visas other than a decision, inter alios, for which the Act provides no right of review under Part 5 or 7 (see: sub-s.66(3)).
Part 5 of the Act (ss.337-393) provides a procedure for the review of certain decisions of the Minister to refuse to grant a visa to a non-citizen. A decision of that class is defined in s.337 of the Act as a "Part 5 reviewable decision". By s.338 of the Act some of those decisions are made "internally-reviewable decisions". By para.339(1)(b) an application for review of an internally-reviewable decision must be made in writing within the prescribed period, being a period ending not later than 28 days after the "notification of the decision". Regulation 4.02 prescribes a period of 28 days for the purpose of para.339(1)(b).
It is plain from the foregoing that the notification of the decision referred to in para.339(1)(b) is the act of notification referred to in sub-s.66(2) which requires written reasons for the decision to be given to the applicant as part of the process of notification.
Sections 341 and 342 of the Act state that a review officer carrying out the review of an internally-reviewable decision may exercise all the powers and discretions conferred by the Act on the person who made the decision. Section 343 then states that when the review officer makes a decision, he or she is to "notify the applicant of the decision in the prescribed way". The "prescribed way" is set out in reg.4.07 which stipulates that a review officer must "notify" an applicant of a decision by sending a notice of the decision to, or leaving a notice of the decision at, the last address given to the Minister by the applicant under s.53 of the Act, or by handing a notice of the decision to the applicant or person specified under sub-s.53(4) of the Act.
Sub-section 343(3) states that "Notification of a decision" refusing the grant of a visa must include written reasons why the visa was not granted. Regulation 4.07(3) provides that the review officer must "notify" the applicant not later than 10 days after making the decision.
Again, it is clear that the notification of a decision referred to in s.343 of the Act must include delivery to the applicant of written reasons for the decision.
Section 346 of the Act states that decisions made by a review officer under s.341 of the Act and certain other "Part 5 reviewable decisions" (see: reg.4.09) are "IRT-reviewable decisions". Paragraph 347(1)(b) of the Act states that an application to the Immigration Review Tribunal ("IRT") is to be made within the prescribed period, being a period ending not later than "28 days after the notification of the IRT-reviewable decision" if the "primary decision" is "covered by paragraph (a), (b), (c) or (d) of the definition of Part 5 reviewable decision". Regulation 4.10 prescribes a period for application for review of 28 days for a "primary decision" of a kind mentioned in para.(a) of the definition of "Part 5 reviewable decision" but nominates lesser periods for other "primary decisions". The word "notification" as used in s.347 means the act of notification described in sub-ss.66(2) and 343(3) of the Act.
The expression "primary decision" is not defined. It may be assumed that it applies to decisions made under s.65 of the Act and, perhaps, to decisions made by a review officer under s.341 of the Act.
By s.367 of the Act the IRT is required to make its decision on review and "notify the applicant of the decision" within a prescribed period where the decision falls within para.(c) or (d) of the definition of "Part 5 reviewable decision". Regulation 4.26 states that such a decision is to be made within 7 working days but it does not prescribe a time within which notification of the decision is to be effected for the purpose of s.367.
Under sub-s.368(1) of the Act the IRT must prepare a written statement where it makes a decision on a review and the statement must set out the decision of the IRT on the review, the reasons for the decision, the findings on any material questions of fact and refer to the evidence or any other material on which the findings of fact were based. Under sub-s.368(2) the IRT is to "give" the applicant and the Secretary to the Department a copy of the statement prepared under sub-s.(1) within 14 days after the decision is made.
Section 368 does not repeat the words "notification of a decision" used in ss.343 and 66 but as set out above, s.367, which deals with a sub-class of "IRT reviewable decisions" requires the IRT to "notify the applicant of the decision". There is no provision in the Act for giving notice of a decision other than delivery of the written statement as set out in s.368 being a statement that must include reasons for the decision.
A similar scheme for the review of decisions to refuse to grant a protection visa is provided in Part 7 of the Act (ss.410-473). By s.411 of the Act a decision, inter alia, to cancel, or to refuse to grant, a protection visa is defined as an "RRT-reviewable decision". An application for review of an RRT-reviewable decision may be made to the Refugee Review Tribunal ("RRT"). Pursuant to para.412(1)(b) of the Act such an application must be given to the RRT within the period prescribed, being a period not later than 28 days after "the notification of the decision".
Regulation 4.31 prescribes that the period within which an application for the review of an RRT reviewable decision is to be given to the RRT is 7 working days from the day on which the applicant is "notified of the decision" where the applicant is in "immigration detention".
The act of notification of the decision to refuse to grant a protection visa to which para.412(1)(b) refers is as set out in sub-s.66(2) of the Act and must include written reasons.
The provisions granting the power to cancel a visa are set out in ss.109, 116, 128, 134, 140 and 501 (see: s.118). In each case the Minister is obliged to inform the former holder of the visa of the ground for the cancellation when notifying that person of the decision to cancel the visa (s.109 and regs.2.41 and 2.42; para.127(2)(a) and reg.2.45, paras.129(1)(a) and (b), sub-s.129(2) and reg.2.47; ss.119 and 120; sub-ss.134(1) and (7), sub-s.134(8)(c)).
With regard to the exercise by the Minister of the power conferred by s.501 of the Act to refuse to grant a visa, or to cancel a visa, such a decision is reviewable by the Administrative Appeals Tribunal pursuant to s.500 of the Act. Under s.29 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") the time for the lodgment of such an application for review would be governed by the date on which reasons for the decision were delivered to the applicant.
In terms similar to those which apply to the IRT in s.368 of the Act, s.430 instructs the RRT as follows:
"430.(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.
(3)Where the Tribunal has prepared the written statement, the Tribunal must:
(a)return to the Secretary any document that the Secretay has provided in relation to the review; and
(b)give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based."
Part 7 of the Act contains no other provision for the giving notice of the RRT decision to the parties to the review, namely, the applicant and the Minister.
The difference in the words used in ss.368 and 430 on the one hand, and ss.66 and 343 on the other, in respect of the notification of a decision may be explained by the introduction of the requirement in ss.368 and 430 that the tribunal give notice both to the applicant for review and to the Minister. Pursuant to sub-s.479(a) of the Act, if a decision of the IRT, or of the RRT, is a "judicially reviewable decision" under s.475 of the Act, an application for review may be made by the Minister and the right to apply for review is not restricted to the applicant for the visa.
In Part 8 of the Act (ss.474-486) this Court is given jurisdiction with respect to "judicially-reviewable decisions". Pursuant to para.475(1)(b) of the Act a judicially-reviewable decision includes, inter alia, a decision of the RRT (para.475(1)(b)) and other decisions made under the Act or the Regulations relating to visas (para.475(1)(c)). The principal source of judicially-reviewable decisions under para.475(1)(c) of the Act would be decisions made under s.65, notification of which must include written reasons for the decision unless sub-s.66(3) applies.
Section 478 of the Act specifies the time within which an application must be made to the Court for the review of a judicially-reviewable decision and prohibits the Court making an order enlarging that time. Section 478 reads as follows:
"478.(1)An application under section 476 of 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)."
It was submitted to his Honour by counsel for the Minister, and to this Court on the appeal, that the meaning of the word "decision" as used in para.478(1)(b) is limited to the outcome of an application for review and does not include the reasons for the decision. However, having regard to the context established by the Act, it is the meaning provided by the collocation of the words "notified of the decision" used in para.478(1)(b) that is relevant to the computation of the time allowed for an application for review. As set out earlier in these reasons those, or like, words are used elsewhere in the Act to define the time at which an application for review is to be initiated.
If counsel's submission were correct it would mean that the form of review procedure for a judicially-reviewable decision is of lesser content than the procedure applied to other rights of review under the Act. It might be added that it would also differ from the paradigm review procedures established by s.29 of the AAT Act and s.11 of the Administrative Decisions (Judicial Review) Act 1977. For such a construction of the Act to be applied it would be necessary to show that in Part 8 of the Act clear words are used by the Parliament to apply another meaning to the words "notified of the decision". There are no words that express such an intention and, to the contrary, the words used in s.478 indicate that the review procedure is intended to operate in a manner consistent with like provisions elsewhere in the Act. Only in respect of a judicially-reviewable decision involving a decision on an application to which sub-s.66(3) of the Act applies, would the "notification" to which para.478(1)(b) and sub-s.66(2) refer not require reasons for that decision to be provided. In respect of the other "judicially-reviewable decisions" to which sub-s.475(1) applies, the "notification" provided for by the Act and the Regulations must, as set out above, include the delivery of reasons for the decision and para.478(1)(b) must be read accordingly.
It may be noted also that, despite the opening words of the section, para.478(1)(b) can have no application to a judicially-reviewable decision for which a right of review is provided by s.477 of the Act. There can be no notification of a decision that has not been made. If the time in which an application for review may be made under s.477 is to be limited, such a limitation must be found, if provided, in the Rules of the Court to which para.478(1)(a) refers and not in para.478(1)(b).
The proper construction of s.430 and para.478(1)(b) of the Act is that the RRT must, within 14 days after the decision is made, "give" to the applicant, and to the Secretary, a written statement which sets out the decision and the reasons for decision and that the "giving" of that statement is the act of notification of the decision to which para.478(1)(b) refers.
His Honour stated that if it had been necessary for him to so decide he would have held that under s.478 of the Act "notification of the decision" required the reasons for, as well as the import of, the decision to be given to an applicant before the limitation period began to run.
It is arguable that in the case of an application for a protection visa where it is disclosed in the application that the applicant does not read or speak English, due notification of the decision may require a written or oral translation of the statement to be "given" to the applicant with the statement. For the reasons that follow it is unnecessary to decide that question.
It was not submitted that the terms of s.53 of the Act could be availed of by the RRT under sub-s.430(2) and the Minister did not rely upon the terms of regs.5.01-5.03 relating to the deemed date of receipt of a document sent by the RRT as having fixed the date of notification of the decision of the RRT. If the "date of the document" is taken to be 26 October 1994 as recited by his Honour, then if those regulations did apply the deemed date of receipt did not occur until 2 November 1994 and, therefore, the applications were lodged within time.
The documents were forwarded to the appellants by post by addressing the documents to a post office box maintained by the Department. Apparently the documents were collected by officers of the Department. Eventually the documents were handed to two legal practitioners who had provided legal advice or assistance to the appellants under a contract made between the Commonwealth and the Refugee Advice and Casework Service (Victoria) Inc. ("RACS") for the provision of such services to persons such as the appellants. The contract between the Commonwealth and RACS provided for RACS to supply legal practitioners to advise and represent applicants for refugee status held in detention at the Port Hedland Immigration Detention Centre until such time as RRT reviewable decisions had been reviewed by the RRT.
His Honour found that the services to be delivered pursuant to that contract ended upon the disposal of the review applications by the RRT. On the material before his Honour the acts of the two practitioners on 31 October 1994 were those of volunteers endeavouring to assist persons such as the appellants who were in custody and in a dependent and disadvantaged position. By reason of their advice to the appellants that "we will be getting together with each of you one-by-one over the next few days to explain the Tribunal decision...and to advise you on what avenues of appeal...may now be open to you" his Honour found that each applicant impliedly gave consent to "the lawyers' conduct" and that such consent amounted to implied authorization to take delivery of the letter from the RRT and the statement enclosed with that letter, and that such delivery constituted notification to the appellants of the RRT decision under s.478 of the Act.
With respect, I am unable to agree with his Honour that notification of the decision was effected for the purpose of para.478(1)(b) of the Act when the statements were received by the practitioners. There was nothing in the material before his Honour to permit an inference to be drawn that either practitioner was authorized by an appellant, either impliedly or expressly, to take delivery of the RRT statement required to be given to that appellant. The practitioners had no continuing authority to act on behalf of the appellants and acted on their own initiative in what was perceived to be the best interests of the appellants.
To conclude that the practitioners had authority from the appellants so to act it would be necesssary to show that the appellants had knowledge of relevant facts from which it may be inferred that such an authority had been granted by the appellants. The appellants were not aware that the parties in the room were dealing with documents the appellants were entitled to receive and deal with. The appellants had been called in to the office of the Manager of the Detention Centre to follow the directions of the Manager. They were powerless in respect of their own affairs. The solicitors who attended at the Manager's office were not able to accept instructions from the appellants and had not consulted with them before meeting the appellants in the company of the Manager. To the appellants the proceedings were part of a continuing routine of detention under which their rights were restricted. In such circumstances an implied grant of authority to the practitioners is unlikely to be apt. The failure of the appellants to complain about the Manager's conduct, or to ask questions through the interpreter about the documents held by the Manager, does not supply a foundation for an inference that impliedly the practitioners were authorised by the appellants to receive the RRT statements on behalf of each of them.
It was a question of fact as to when each appellant was notified of the RRT decision required to be given to her by the RRT pursuant to s.430 of the Act. There was no evidence that any appellant was so notified before 2 November 1994 and the conclusion had to follow that the applications for review were lodged within time in the Darwin registry of this Court by solicitors practising in Darwin who eventually received instructions from the appellants so to act.
As a result his Honour had jurisdiction to consider and deal with these applications and should have proceeded to find, for the reasons he expressed, that the decisions of the RRT should be set aside and the matters remitted to the RRT for further consideration according to law.
Counsel for the Minister submitted by way of notice of contention that his Honour would have erred had he ordered that the decisions of the RRT should be set aside. It is unnecessary to look at the totality of the grounds on which his Honour would have relied to make such an order or to deal in turn with each of the points of the notice of contention. It is sufficient to recite the error of law in the decision of the RRT described by his Honour to show that his Honour's anticipated orders that the decisions of the RRT should be set aside and the matters remitted to the RRT would have been the correct orders in each case.
The RRT accepted, in effect, that each of the appellants feared persecution should she be returned to the Peoples Republic of China ("PRC"). The question to be determined by the RRT was whether that fear of persecution was well-founded in the sense that there was a real chance that such persecution may occur being persecution connected with a Convention reason. (See: Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs (1989) 169 C.L.R. 379.)
Each applicant had been forcibly sterilized before leaving the PRC. The RRT assumed that acts of forced sterilization and abortion constituted persecution for a Convention reason but limited its determination of the refugee status claimed by each appellant to the following question, namely, is there "a real chance that she would be persecuted for such a reason upon return to China at this time or within the reasonably foreseeable future?" and by answering that question as follows: "For practical purposes, the virtual finality of sterilization means that there is not a real chance of further interference to the applicant's body."
The forgoing reasoning of the RRT discloses an error in law in the decision-making process.
What the RRT had to determine was whether the further acts of discrimination by the PRC authorities feared by the appellants as a consequence of forcible sterilizations, namely, imposition of fines, assaults, loss of employment, loss of work opportunities, denial of medical treatment and restriction of educational opportunities for their children amounted to persecution and, if so, whether the fear of such acts was well-founded in that there was a real chance, not merely a fanciful belief, that such acts would occur. The RRT failed to address or deal with the meaning of persecution as used in the Convention and the Act and the process of review miscarried. It was submitted by counsel for the Minister that the RRT "did not overlook these matters" in that the RRT referred to the feared consequences in its reasons. Reciting the claims did not display that the RRT directed itself to the central issue of the review proceeding and, thereby, avoided error. As his Honour stated, the answer produced by the RRT to the question it posed demonstrated that the RRT had not addressed the proper question.
The acts of the State in forcibly sterilizing some female members of the population of the State and directing that continuing consequences of deprivation apply to the families of those members is capable of characterizing those persons as members of a particular social group for the purpose of the Convention. Whether the appellants were members of such a group and whether the acts of the PRC feared by the appellants would be suffered by them or their families upon return to the PRC could amount to persecution for a Convention reason were principal issues to be determined by the RRT and if answered affirmatively the RRT had to decide whether there was a real chance such persecution could occur if the appellants were returned to the PRC. The conclusion that there was "no real chance of further interference to the applicant's body" disclosed that those questions were not addressed.
It is unnecessary in this proceeding to consider whether the persecution feared would be persecution inflicted for the Convention reasons of religion or political opinion. (See: P. Matthew, "Retreating from the Refugee Convention", Treaty Making and Australia - Globalisation Versus Sovereignty, (N.S.W.: Federation Press, 1995), p.149.)
The appeals should be allowed, his Honour's judgment set aside and in lieu thereof it be ordered that the decisions of the RRT be set aside and the matters remitted to the RRT for further consideration according to law.
I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.
Associate:
Date: 17 April, 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NORTHERN TERRITORY )
DISTRICT REGISTRY )
)
GENERAL DIVISION )
On Appeal from a Judge of the Federal Court of Australia
No. DG8 of 1995
BETWEEN: LONG GUAN CHUN
Appellant
AND:MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
First Respondent
AND:MR M.W. GERKENS
Second Respondent
AND:HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Intervener
No. DG9 of 1995
BETWEEN:LI LIU YING
Appellant
AND:MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
First Respondent
AND:MR M.W. GERKENS
Second Respondent
AND:HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Intervener
No. DG10 of 1995
BETWEEN:LONG GUAN JUAN
Appellant
AND:MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
First Respondent
AND:MR M.W. GERKENS
Second Respondent
AND:HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Intervener
CORAM:JENKINSON, LEE AND BEAZLEY JJ
PLACE: MELBOURNE (HEARD IN DARWIN)
DATE: 17 April 1996
REASONS FOR JUDGMENT
BEAZLEY J: I have read the reasons for judgment of Jenkinson and Lee JJ. I agree with Jenkinson J that there is a distinction in the Migration Act 1958 (Cth) between "decision" and "reasons for decision". It follows from this distinction, as Jenkinson J has stated, that the time limit imposed by s 478(1) runs from the time that an applicant is notified of the decision of which review is sought. It does not depend upon the time an applicant is notified of the reasons for decision, although it might be expected, in most cases, that that would occur at the same time.
I also agree with Jenkinson J, for the reasons stated by him, that the appellants were notified of the decision on 31 October 1994.
I do not agree, however, with his Honour's conclusion that the two lawyers were impliedly authorised by the appellants to take and use the statement of reasons of the Tribunal's decision. In this regard, I agree with the reasons of Lee J.
As a finding that the appellants were notified of the decision when they were informed of the Tribunal's decision on 31 October 1994, it follows that the appeal should be dismissed. Accordingly, I agree with the orders proposed by Jenkinson J.
I certify that this page
is a true copy of the Reasons for Judgment
of the Honourable Justice Beazley.
Associate:
Dated: 17 April 1996
DG8, DG9 and DG10 of 1995
Counsel for the Appellants : Mr. C.R. McDonald and Ms. S.M. Gearin instructed by Ken Parish
Counsel for the Respondents : Mr. R.R.S. Tracey and Mr. L. Silvester instructed by Australian Government Solicitor
Dates of Hearing : 11 and 12 July, 1995
Date of Judgment : 17 April, 1996
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