Samy, Muthulingam Muttukkumara v Minister for Immigration & Multicultural Affairs

[1996] FCA 1085

CATCHWORDS

IMMIGRATION - Review of decision of Refugee Review Tribunal - Whether application filed within time - Application must be lodged within 28 days of applicant being notified of decision - Whether applicant’s solicitor authorised to receive notification of decision of Tribunal in place of applicant

Migration Act 1958, s 478
Migration Regulations, reg 4.40

Kamkar v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, North J, 9 December 1996)

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

SAMY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL
VG 580 of 1996

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

VG 580 of 1996

B E T W E E N :

MUTHULINGAM MUTTUKKUMARA SAMY
Applicant

AND

MINISTER FOR IMMIGRATION
& MULTICULTURAL AFFAIRS
Respondent

MINUTES OF ORDERS

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

THE COURT ORDERS THAT:

The motion, notice of which was filed by the respondent on 8 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 580 of 1996

B E T W E E N :

MUTHULINGAM MUTTUKKUMARA SAMY
Applicant

AND

MINISTER FOR IMMIGRATION
& MULTICULTURAL AFFAIRS
Respondent

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

REASONS FOR JUDGMENT

The applicant is a Sri Lankan Tamil. The respondent, the Minister for Immigration & Multicultural Affairs, refused the applicant’s claim for refugee status, and this decision was upheld on review by the Refugee Review Tribunal. The Tribunal decision was made on 7 August 1996. On 16 September 1996, the applicant lodged with the Court an application for review of the Tribunal decision under s 476 of the Migration Act 1958 (the Act). Section 478(1)(b) provides that an application under s 476 must:

“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 application must be lodged. By a motion, notice of which was filed on 8 October 1996, the respondent sought an order that the application be dismissed. Mr Rawson, who appeared for the respondent, contended that the application was not lodged within the 28-day period prescribed by s 478(1)(b) and, consequently, the Court had no jurisdiction to hear the matter.

The relevant facts are not in dispute. When the applicant commenced the review in the Tribunal, he filed an application on a form which, on the front page, provided space for him to fill in his name, home address and postal address. These details were completed. The residential and postal addresses were the same. Further down the page appeared the question:

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

Below this sentence were boxes for the name, title, organisation, address, phone number and fax number of the adviser. These boxes were completed with the details of a solicitor, Mr Raveendran. Immediately following, at the foot of the page, appeared the question:

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

Below this question, the “yes” box was marked with a cross.

On 12 August 1996, the Tribunal wrote to the applicant advising him of the decision and enclosing a copy of the decision and the reasons. The Tribunal also sent a copy of the decision and reasons to Mr Raveendran. The applicant had changed residential address since lodging the application form, but did collect mail from the postal address notified. However, he did not receive the decision and reasons at that address until 20 August 1996.

The respondent accepted that, if he was forced to rely on notification of the decision to the applicant, then that event did not occur until 20 August 1996, or perhaps the day before, when Mr Raveendran told the applicant on the phone that the Tribunal had rejected his application. In either case, the application lodged on 16 September 1996 would have been lodged in time.

However, Mr Rawson relied upon receipt of the decision and reasons by Mr Raveendran on 14 August 1996 as the notification of the applicant for the purpose of the commencement of time for bringing an application under s 478(1)(b). The notification was achieved in conformity with regulation 4.40(1)(c) of the Migration Regulations, 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”.

Mr Rawson contended that Mr Raveendran was authorised by the applicant to receive notification of the decision of the Tribunal. The completed application form was evidence of that authority, because it nominated Mr Raveendran as an adviser to whom the Tribunal was asked to send copies of correspondence. On this argument, the application was lodged outside the 28-day period.

In my view, the application form indicated that the Tribunal was to communicate with the applicant. That was the purpose for which the applicant provided his residential and postal addresses. The form allowed the Tribunal to communicate with the adviser in addition to communication with the applicant. This conclusion follows from the fact that the applicant’s addresses are given, and also that the adviser is to receive copies. If completion of the form were to result in the Tribunal having the choice whether to notify the applicant or the adviser, the question on the form would have asked:

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

Furthermore, the form was accompanied by a full page of instructions concerning completion of the form. There was no reference in the instructions to the consequence of giving a “yes” answer to the question about copies of correspondence being given to the adviser. This is a strong reason to construe the form against the respondent. A further reason is that the applicant required an interpreter to interpret the contents of the form to him. This must be a regular occurrence because the form includes an interpreter’s declaration that the contents of the form have been faithfully interpreted. There is no room for fine
distinctions in the meaning of the question where the terms of the question need to pass through the further filter of interpretation. Consequently, the application form did not evidence an authority for the Tribunal to notify Mr Raveendran alone of the decision for the purposes of regulation 4.40.

I have dealt with this case on the assumption, favourable to the respondent, that regulation 4.40 applies. Even on that basis, the respondent must fail. However, in my view, regulation 4.40 does not apply: Kamkar v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, North J, 9 December 1996). In the light of my decision, it is not necessary to determine the applicant’s argument that regulation 5.03 applies in this case and that the decision in Van Chuong Nguyen v Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, 31 July 1996) is wrong. The motion, notice of which was filed by the respondent on 8 October 1996, is dismissed with costs.

I certify that this and the preceding
four (4) 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. Appudurai
Solicitors for the applicant:                   Ravi James & Associates

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

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