FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377
MIGRATION – application for protection visa – notification of decision of Minister given by registered pre-paid mail – notification not in fact received by visa applicant until some months later – postal article inadvertently misplaced at post office – whether notification in that manner is notification under reg 2.16(1) by sending notice of decision to visa applicant’s address – whether notification deemed by reg 5.03 to have been received seven days after it was dated – whether application for review within time prescribed by s 412 and reg 4.31.
MIGRATION – Migration Regulations – s 412 provides for time within which application for review of decision of Minister to be prescribed – reg 4.31 prescribes time limits for such applications – reg 5.03 deems notification of Minister’s decision to have been received seven days after it was dated in certain circumstances – whether reg 5.03 may operate to abridge time periods prescribed by reg 4.31 – whether reg 5.03 may operate effectively to nullify right of review granted by s 412 -–whether reg 5.03 valid exercise of regulation making power.
Acts Interpretation Act 1901 (Cth) s 28A and s 29
Evidence Act 1995 (Cth) ss 4, 160, 160(1)
Migration Act 1958 (Cth) ss 53, 53(1), 53(3), 53(4), 66, 66(1), 66(2)(c), 347(1)(b), 411, 412, 412(1)(b), 414, 504(3A), 504(1)(e)
Migration Regulations 1994 (Cth) regs 2.16(1), 2.16(1)(c), 4.10(1)(a)(ii), 4.31, 4.31(2)(a), 4.31(2)(b), 4.31(3)(a), 4.31(4), 5.03
Dawai v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 379 referred to
Santos v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 334 referred to
Tabet v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 446 referred to Shrestha v Minister for Immigration & Multicultural Affairs [1997] FCA 1051(Sackville J October 1997) referred to
Tjandra v Minister for Immigration & Multicultural Affairs (1998) 50 ALD 454 referred to
Dharminder Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 506 referred to
Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 1375 referred to
Naheem v Minister for Immigration & Multicultural Affairs [1999] FCA 1360 referred to
Guo Heng Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 applied
Alkaab v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 375 applied
R v Secretary of State for the Home Department, ex parte Yeboah [1987] 3 All ER 999 applied
Re Minister for Immigration and Multicultural Affairs; Ex parte Radojicic (High Court of Australia, 21 January 2000, unreported) referred to
Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 applied
Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 referred to
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v
HARINDER PAL SINGHN 496 OF 1999
O’CONNOR, TAMBERLIN & MANSFIELD JJ
4 APRIL 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 496 OF 1999
ON APPEAL FROM A SINGLE JUDGE
OF THE…
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- Case
- [2000] FCA 377
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the letter had been sent to Mr Singh's address or to the Dubbo Post Office. The Minister contended that the judge had erred in finding that the letter was not delivered to Mr Singh's address, arguing that there was insufficient evidence to support such a conclusion. Additionally, the Minister argued that the judge incorrectly inferred that a first card was not sent to Mr Singh, suggesting that the letter might have been taken to the address together with the card for hand delivery. The Court had to consider whether the statutory obligations were met and whether the use of registered pre-paid mail, as opposed to regular pre-paid mail, had any bearing on the notification requirements.
The Court examined the statutory provisions and the evidence presented, noting that there was no evidence to support either the Minister's or Mr Singh's claims regarding the delivery of the letter. The Court ultimately concluded that the decision to dismiss the appeal was correct, as there was no basis to infer that the Minister had failed to comply with the notification requirements. The Court also observed that the tension between jurisdictional certainty and the avoidance of hardship must be balanced, as highlighted in previous cases. Therefore, the appeal was dismissed, and the Minister was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay to the respondent his costs of the appeal to be taxed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
As noted earlier, the Minister did not accept the learned judge’s description of the process for delivery of registered mail. He argued that the learned judge erred in finding that the letter was not sent to Mr Singh’s address, but was sent to the Dubbo Post Office. He asserted (and it was not gainsaid) that the particular issue was not raised by Mr Singh in submissions or otherwise. He contended that there was no evidentiary basis upon which his Honour could have concluded that a decision was made to send the letter to the post office rather than to Mr Singh’s address or that the letter was sent to the post office rather than to Mr Singh’s address. It was also contended that his Honour was in error in concluding that a first card was not actually sent to Mr Singh (a matter upon which the Tribunal expressed no view), as it was said that the only logical inference from the evidence before the Tribunal and the Court was that a first card was sent. If a first card was sent by the post office to the address, it was suggested that the letter itself may have been taken to the address together with that card for collection on hand delivery if someone was present to receive it. It is common ground that there was no evidence on those matters.Consideration of contentions The starting point for consideration of the contentions is s 66(1). It obliged the Minister to notify Mr Singh of its decision to refuse his visa application in the prescribed way. Regulation 2.16(1) prescribes the way in which that notification is to be given. Subparagraph (c) prescribes, in the present circumstances, for the notification to be given by sending a notice of the decision to the address at 215 Macquarie Street Dubbo NSW 2830. The critical question is whether the letter was sent to that address when it was sent by registered pre-paid mail. If it was, then s 53(3) provides that the letter is deemed to have been received by Mr Singh even if it was not received by him. Regulation 5.03 then provides both that the letter is taken to have been so received by Mr Singh at the time it was taken to have been received at the address to which it was sent, and that the time it was taken to have been received at that address was seven days after the date of the letter. The letter was sent within seven days after its date: reg 5.03(2). Subject to determination of that critical question, that is the effect of the decisions such as Santos, Shrestha and Dharminder Singh referred to above. The particular significance, if any, of the use of registered pre-paid mail, compared to the use of what was called in submissions “regular” pre-paid mail to give notice of decisions concerning visa applications does not appear to have been addressed in those earlier decisions of the Court. There is, as Tamberlin J observed in Alkaab v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 375, a tension between the competing considerations which underpin the approaches taken to the notification provisions in the Act and in the Regulations. His Honour said (at 379):“On the one hand these considerations include the desirability for jurisdictional certainty, efficiency, and uniformity in administrative and judicial review proceedings and, on the other hand, the avoid of hardship and injustice arising from the imposition of arbitrary time limits based on deemed or constructive notification, which may not accord with the reality.”