Nguyen, Van Chuong v Minister for Immigration and Ethnic Affairs
[1996] FCA 653
•31 JULY 1996
CATCHWORDS
IMMIGRATION - review of decision of Refugee Review Tribunal - notification of decision - whether regulations impute receipt of notice seven days after date of document containing notice - relationship between requirement in Migration Act 1958 for notification and regulations providing for imputed notice.
Migration Act 1958: s478
Acts Interpretation Act 1901: ss 15AB and 29
Migration Regulations: reg 4.40, 4.41, 5.03
Lombard Australia Ltd v Mohrwinkel (1973) 1 ACTR 57
Burke v Custom Credit Corporation (1971) 65 QJPR 5
Long Guan Chun v Minister for Immigration, Local Government and Ethnic Affairs, 17 April 1996, unreported, Full Court, Federal Court of Australia
Secretary, Department of Social Security v Garratt (1992) 109 ALR 149
Secretary, Department of Social Security v Sevell (1992) 110 ALR 627
Esber v The Commonwealth of Australia (1992) 174 CLR 430
No. NG 532 of 1995
Van Chuong Nguyen -v- Minister for Immigration and Ethnic Affairs
MOORE J
SYDNEY
31 JULY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 532 of 1995
)
GENERAL DIVISION )
BETWEEN: VAN CHUONG NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 31 July 1996
REASONS FOR JUDGMENT
On 25 July 1995 an application was filed by Mr Van Chuong Nguyen ("the applicant") seeking the review of a decision of the Refugee Review Tribunal ("the Tribunal") of 25 May 1995. It was not apparent from the application whether the proceedings were instituted under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") or the Migration Act 1958 ("the Act") or both. The matter came on for hearing on 18 April 1996 and counsel for the Minister for Immigration and Ethnic Affairs ("the Minister") raised a preliminary point concerning the competency of the application insofar as it was brought under the Act. I was invited to determine this issue as it would have a material bearing on the future of the proceedings generally.
The preliminary issue concerns the time at which the application was filed. The relevant facts were not in issue. The Tribunal's decision was published on 25 May 1995 and on 26 May 1995 a letter was sent by certified mail to the applicant on behalf of the Deputy Registrar of the Tribunal. The letter enclosed a copy of the Tribunal's reasons for decision and noted that "the Tribunal has decided that you are not a refugee, which means you are not entitled to a Protection Visa". The letter goes on to say:
"You may have a right of review of this decision in the Courts. An application for such review, in the case of the Federal Court of Australia, must be made within twenty eight (28) days of notification of this decision. You should seek independent advice if you wish to pursue this or any other right available to you."
As the letter was sent by certified mail it was not simply delivered directly to the residential address of the applicant which was the address on the letter itself. Rather the letter was received by Fairfield Post Office and, it would appear, attempts then made by a postal officer to deliver the certified letter personally between 26 May and 30 May 1995. These attempts were unsuccessful and the certified mail item was returned to Fairfield Post Office where it was, in due course, collected by the applicant. The applicant first received notice of the registered mail item on 11 July 1995 and collected it from the Post Office on 13 July 1995. The applicant saw his solicitor the following day and instructed him to commence proceedings in this Court. This led to the application of 25 July 1995 being lodged.
The relevance of these dates is that the Act now contains a provision that requires that an application seeking a review of a decision of the Tribunal must be lodged within a specified time, namely, 28 days after notification of the decision. This requirement is found in s478 of the Act which provides:
"(1)An application under section 476 or 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.
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 critical question is whether the application was lodged within 28 days of the applicant being notified of the decision. Before considering that question it is necessary to set out other sections of the Act. Section 430 deals with the manner in which the Tribunal must prepare and publish its decisions and 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.
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.
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."
The manner and time within which documents of the Tribunal might be served is dealt with by regulation. The power to make regulations is found in s504 which relevantly provides:
"(1)The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations:
(a)...
(e)making provision for and in relation to:
i)the giving of documents to;
ii)the lodging of documents with; or
iii)the service of documents on;
the Minister, the Secretary or any other person or body, for the purposes of this Act;
(f)...
...
The regulations that may be made under paragraph (1)(e) include, but are not limited to, regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of this Act and the regulations to have been received by the person at a specified or ascertainable time."
The regulations deal with the service and receipt of documents and the relevant regulations are:
"reg 4.40 (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; or
(b)by posting it to the residential address provided by the applicant in his or her application for review; or
(c)by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or
(d)by leaving it at the place of residence of the applicant with a person who appears to live there and appears to have turned 16.
reg 4.41(1) If:
(a)a document is to be given to, or served on, a person for the purposes of a review by the Tribunal; and
(b)no other provision as to the manner of giving or serving the document is made by the Act or these Regulations;
the document may be given or served:
(c)if the person has lodged an address for service under regulation 4.39, by posting it to, or leaving it at, that address; or
(d)if the person has not lodged an address for service:
i)by giving it to the person personally or to a person duly authorised to receive documents on behalf of the first-mentioned person; or
ii)by posting it to the person at his or her last-known place of residence; or
iii)by leaving it at that place of residence of the person with another person who apparently lives there and has apparently turned 16.
(2)It is sufficient compliance with a requirement to give or serve a document referred to in sub-regulation (1) if a facsimile or certified copy of the document is given or served in accordance with that sub-regulation.
(3)A document posted in accordance with paragraph (1)(d) must bear correct pre-paid postage and, if the document is posted to an overseas address, the postage must be at the full airmail rate.
(4)A document posted in accordance with this regulation is taken to be received at a time worked out as set out in regulation 5.03.
reg 5.01In this Division:
"document" includes:
(a)...
(b)an invitation, notice, notification, statement or summons, if it is in writing.
reg 5.03(1) For the purposes of these Regulations, and subject to specific provision elsewhere in these regulations, a document that is sent by the Minister or a Tribunal is taken to be received:
(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.
(2)Sub-regulation (1) does not apply to a document unless it is sent within 7 days after the date of the document."
Counsel for the applicant put in issue the validity of some of the relevant regulations. However it is first necessary to ascertain what the regulations mean. I deal firstly with the scope of reg 4.40. It is directly relevant in that it concerns a notice of a decision of the Tribunal. It provides that notice is "duly given" if the notice is given in one of the ways specified in paragraphs (a), (b), (c) or (d). In my opinion, this regulation deals only with the manner of giving notice and only indirectly deals with the question of the time at which notice is given. It authorises the giving of a notice or statement by the means identified which include posting. The reference to "notice or statement" is, in context, a reference to a document which constitutes a notice or a statement. Thus if, as provided in paragraphs (a) or (b), a notice is posted, and subject to the possible operation of reg 5.03, s29 of the Acts Interpretation Act 1901 would operate so as to treat the notice as having been served at the time at which the document containing the notice would have been delivered in the ordinary course of post unless the contrary is proved. It is unnecessary to deal conclusively with the issue of whether both reg 4.40 and s29 concern posting by certified mail: see Lombard Australia Ltd v Mohrwinkel (1973) 1 ACTR 57 and Burke v Custom Credit Corporation (1971) 65 QJPR 5 though it would appear they do. In these proceedings, it has been proved that, as a matter of fact, the applicant did not receive the notice till 13 July 1995 thus displacing the prima facie operation of s29. The time at which notice was given, if given in accordance with paragraph (c), would be patent. It would be the time of the physical act of giving. Less clear is the time at which a notice is given, if given in accordance with paragraph (d), by leaving it with a person who was not the applicant. Consistent with the judgment of the Full Court in Long Guan Chun v Minister for Immigration, Local Government and Ethnic Affairs, Full Court of the Federal Court, 17 April 1996, unreported which I discuss in more detail shortly, it is when the notice is given to the person who is over the age of sixteen who is, by the regulation, treated as an agent of the applicant.
The starting point in construing reg 5.03 is the language used in the context in which the regulation appears. Regulation 5.03 imputes receipt of a document by a person at a specified time. However the prefatory words of sub-reg 5.03(1), "for the purposes of these Regulations" signifies that the regulation serves a limited purpose. It is an expression used elsewhere in the regulations to provide an expanded meaning of a word or expression used in either the regulation in which it appears or in the regulations more generally, see, for example, regs 1.08, 1.09(2) and (3), 1.11, 1.13, 1.15A, 1.20, 1.23. That expression is to be contrasted with the expression used elsewhere in the regulations, "for the purposes of section ... of the Act" or variants of it. That latter expression is used to signify that the regulation deals with a matter that is provided for in the Act itself. It is also to be contrasted with the expression "for the purposes of the Act and these regulations" appearing in reg 5.02 which signifies the regulation operates on provisions in both the regulations and the Act.
The provisions of reg 5.03 plainly have work to do in the regulations. In the following review of the regulations, I have dealt with the regulations in the form they took in the period May to July 1995. Section 58 of the Act provides a mechanism which enables the Minister to invite additional information, or comment on information, from an applicant for a visa. Section 58(2) says the information or comment must be given within a prescribed period. Regulation 2.15 requires that information or comment be provided within various periods depending upon the circumstance of the applicant. One such period is a period of 28 days after the applicant is notified of the invitation. Regulation 5.03 would operate to treat the applicant as having been notified of the invitation 7 or 28 days after the date of the invitation. The 28 days would run from that time. Regulation 4.08 repeats the provisions of reg 2.15 in relation to an internal review of a decision of the Minister and reg 5.03 would operate in the same way. Similarly regs 4.17 and 4.18 deal with the provision of evidence to the Tribunal as contemplated by s 360(1)(b) of the Act when it is conducting a review, other than on the papers. The regulations require that a person provide evidence within various specified periods after they are notified by the Tribunal of the requirement. Regulation 5.03 would operate so as to identify the times from which the specified period would commence to run.
Regulation 4.31 deals with the review of decisions by the Tribunal under s411. The regulation specifies periods of time within which the application for review must be made. They commence on the day the applicant is notified of the decision. Regulation 5.03 would operate to identify that day. Indeed the regulation contains an endnote to that effect. Reg 4.35 deals with the provision of evidence to the Tribunal in much the same way as reg 4.17 and 4.18 which I have just discussed. Regulation 5.03 would operate to identify the time from which the period commenced in which the evidence was to be provided.
A further purpose is served, for the purposes of the regulations, by regulation 5.03 having regard to the provisions of reg 4.41(4). Somewhat unusually, reg 4.41(4) expressly incorporates into reg 4.41 the provisions of reg 5.03 so that they operate to impute receipt of a document sent in accordance with reg 4.41 at the time specified in reg 5.03. If, as appears to be intended, reg 4.41 identifies the manner of sending documents of the specified type which are required or permitted by the Act to be sent, then the provisions of reg 5.03 would, by virtue of their express incorporation into reg 4.41, also operate in relation to any such document. Regulation 4.41(1) limits the operation of the regulation and it does not operate where there is another provision in the regulations as to the manner of giving or serving a document. Regulation 4.40 is such a provision and reg 4.41 has no application to a notice in relation to a decision of the Tribunal. Of some significance, in my opinion, is that this device of incorporation found in reg 4.41 has not been adopted in reg 4.40. It supports the conclusion that reg 5.03 is not intended to operate on reg 4.40 so as to indirectly operate on a provision of the Act, namely s478(1)(b).
Regulation 5.03 serves a purpose of identifying when documents are to be treated as having been received, where the operation of a particular regulation depends upon their receipt and the time of their receipt is the starting point of a period within which something must be done.
The language of regulation 5.03, and in particular the use of the expression "for the purposes of these Regulations", tends to indicate that its operation is limited to the circumstances I have just discussed. It would also tend to indicate that it is not intended to operate, in conjunction with regulation 4.40, on a provision of the Act so as to impute receipt of a notice so that the time specified in s478(1) commences to run from the time of imputed receipt.
However the Minister referred to the explanatory memorandum concerning the operation of reg 5.03, it read:
"Regulation 5.03 - Time of receipt of notice etc. that is sent
This regulation sets out when a notice that is sent by the Minister or a Tribunal is taken to have been received. If sent within Australia to an address in Australia, the notice is taken to be received 7 days after the date of the notice unless the notice was not in fact sent in that period. Notices sent to an address outside Australia, and notices sent from outside Australia, will be taken to have been received 21 days after the date of the notice unless not actually sent within 7 days of date of notice.
The use of a set period (eg 7 days from the date of the notice) ensures that applicants can be told exactly when their review rights expire. In the past, it is possible that some applicants may have inadvertently missed out on review rights because they misunderstood notification provisions that required an applicant to calculate the relevant period from the date of postage. Regulation 5.03 will ensure that the Minister, clients, representatives, and review bodies, will know exactly when review rights expire.
In addition, applicants in Australia will hold bridging visas providing them with lawful status until they are granted a substantive visa or until 28 days after they are notified that their application has been refused. If review rights are exercised, the bridging visa will continue to provide lawful status until 28 days after notification of the review decision. The specific notification period enables decision makers to tell applicants exactly when their bridging visa will cease, thereby ensuring that non-citizens do not inadvertently become unlawful and liable for detention.
To ensure that the Department holds a verifiable record of each notice sent, administrative procedures will require that all notices of visa refusals and requests for comment on adverse information provided by third parties are to be sent by certified mail or the equivalent. The regulation makes it clear that if the notice is not sent within 7 days, notification will not have taken place and will need to be effected. Any consequences in relation to review rights and the bridging visa period will rest on notification in accordance with these provisions."
The Minister also referred to the wide scope of the regulation making power arising from the combined operation of s504(1)(e) and s504(3).
It may be accepted that the explanatory memorandum refers to notification and the expiration of review rights and that it may thus be a reference to, amongst others, the right arising under s476 of the Act to apply for a review by the Court. However, as earlier discussed, reg 5.03 has a relevant operation on an application for review by the Tribunal: see reg 4.31, if its operation is restricted to notification required, not by the Act, but by the regulations. The explanatory memorandum does not, in terms, refer to review by the Court. Having regard to the limited use that may be made of the explanatory memorandum, see 15AB of the Acts Interpretation Act 1901 as applied to regulations by s46(1)(a) of that Act, its language is not sufficiently clear to suggest that the prefatory words of reg 5.03 should not be given what, in my opinion, is their ordinary meaning.
As to the width of the regulation making power, I accept that s504(1)(e) and (3) are terms that would enable a regulation to be made that would treat notification, for the purposes of s478, 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. But the existence of a regulation making power in such wide terms does not dictate that a regulation made in exercise of that power should be taken to have exhausted the limits of the power if the language of the regulation indicates otherwise.
More generally, the proper approach to be adopted, in my opinion, in construing reg 5.03 and s478 is found in the following observations of Gummow J in Secretary, Department of Social Security v Garratt (1992) 109 ALR 149 when considering s168(4)(a) of the Social Security Act 1947. The provision concerned notice of a determination by the Secretary. His Honour said at 157:
"Unlike s163, s168(4)(a) does not speak of notice being given personally or by post. The phrase it employs is "a notice was given". Accordingly, s168 is quite different in its terms from those of s42 of the Hire Purchase Act 1959 (Qld) considered in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; 48 ALR 1. In my view, s168(4) is not a provision which authorises or requires any document to be served by post within the meaning of s29 of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act).
Paragraphs (a) and (b) of s168(4) are not directed to any particular manner of service of notices. They are concerned with the fixing of a date which is determinative of the right of persons in relation to pensions, benefits and claims under the Act. The date is fixed by criteria which operate favourably or adversely to those persons by reference to their action or inaction over a particular period after notice was given. The paragraphs operate after there has been, upon application by person or persons affected by it, a review by the Secretary under s173(1) of the decision of which notice was given.
In this setting, the rights of persons should not be readily construed so as to fix upon something less than the giving of notice and to accept an imputed notification as sufficient for the operation of the legislation. The delay which has adverse consequences as specified in paras (a) and (b) is delay after notice."
These remarks were adopted by a Full Court in Secretary, Department of Social Security v Sevell (1992) 110 ALR 627 at 640.
Similarly, in my view, and to adopt the language of his Honour, the right of the applicant to seek a review: see Esber v The Commonwealth of Australia (1992) 174 CLR 430 at 438-440 in the present case should not readily be construed so as to fix upon something less than the giving of notice and to accept an imputed notification as sufficient for the operation of the legislation. Plainly that approach, which involves a construction beneficial to the person whose rights depend upon the giving of notice, is to be adopted only in ascertaining the legislative intention reflected in the language of the Act and regulations and not to impute a meaning to words in an Act or regulation at odds with it.
However, in the present case, the expression "the applicant being notified" in s478 is a reference to actual notification subject to the operation of reg 4.40 and any other regulation that, properly construed, also applies. Consideration of its meaning is found in the judgments of Jenkinson J, with whose reasons on the relevant point Beazley J appeared to agree, and Lee J in Long Guan Chun (supra). The Court was considering the operation of s478(1)(b) from a slightly different perspective. A delegate of the Minister had refused to grant three Chinese nationals, who were in detention, a protection visa. Those decisions were affirmed, upon review, by the Refugee Review Tribunal. The three Chinese nationals, who did not understand English, were sent letters in English informing them of the adverse decision of
the Tribunal and they were, on 31 October 1994, told of the substance of the letters in Chinese.
In issue was whether they were thereby "notified of the decision" which turned on whether "decision" meant the determination of the Tribunal or included also the reasons for it. On that question the Court's opinions were divided. Jenkinson and Beazley JJ considered that only the ultimate decision need be notified while Lee J considered that s478(1)(b) required notification of the reasons for decision. A subsidiary issue was whether notification was effected by notifying lawyers acting on behalf of the Chinese nationals. However it is plain, in my opinion, that each member of the Court took the view that "notified" meant actual notification arising from the way a notice might be given under reg 5.02. Lee and Beazley JJ, in so far as there was an issue about actual notification being effected by notifying the lawyers, concluded that there had not been notification because the evidence did not support a finding that the lawyers were authorised to receive notice. This is one of the elements of the mode of giving a notice authorised by reg 5.02.
It is unnecessary to determine whether I am bound by this decision to decide this matter in a particular way as the views of the members of the Full Court are, at the least, highly persuasive. They accord with what I consider is meant by "notified" in s478(1)(b). Indeed the existence of a regulation making power that enables the creation of a scheme to impute receipt of a document at a specified time, and thus notification of a decision, and enables that to be done "for all purposes of (the) Act", supports the construction of s478(1)(b) that it would require, in the absence of such a scheme, actual notification. It authorises a regulation that would modify the way the Act would otherwise operate. As earlier discussed, such a scheme is not presently found in the regulations as it directly concerns the time of notification for the purposes of s478(1)(b). That is so because reg 5.03 does not apply to notice required to be given by s478(1)(b). Accordingly I have concluded that the application lodged by the applicant was lodged within the time specified by that section as the applicant was not notified of the decision till 13 July 1995. Unless requested to do so by a party I do not propose to make any order as a result of my consideration of the preliminary issue that was raised by the Minister. I will list the application for hearing at a date I will fix after my associate has spoken to those acting for the parties involved.
I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate: ........ ........ ......
Dated: 31 July 1996
APPEARANCES
Counsel for the Applicant: Dr S.C. Churches
Solicitor for the Applicant: Nguyen Ho
Counsel for the Respondent: Ms E.A. Wilkins
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 18 April 1996
Written Submissions Complete: 3 June 1996
Date of Judgment: 31 July 1996
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