Santos, Odelia v Minister for Immigration & Multicultural Affairs

[1997] FCA 341

CATCHWORDS
IMMIGRATION - application to Refugee Review Tribunal for review lodged out of time - time for lodging application determined by notification of decision of respondent - notification of decision of respondent not received by applicant - whether notification deemed to be received - whether notification must be received to be effective - actual receipt of decision not necessary for notification.

Migration Act 1958, ss 53, 66(1)
Migration Regulations, reg 2.16, 5.03

Vines v Djordjevitch (1955) 91 CLR 512, cited

Attorney-General (ACT); Ex rel Olaseat Pty Ltd v Australian Capital TerritoryMinister for Environment, Land and Planning (1993) 43 FCR 329, cited

Minister for Immigration and Ethnic Affairs v Tang Jia Xin (1993) 47 FCR 176, cited

Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31, cited

Coates v Commissioner for Railways (1961) 78 WN (NSW) 377, cited

Muller v Dalgety & Co Ltd (1909) 9 CLR 693, cited

ODELIA SANTOS - v -
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NO NG 924 OF 1996

Tamberlin J
Sydney
8 May 1997

IN THE FEDERAL COURT OF AUSTRALIA )                 
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 924 of 1996          
GENERAL DIVISION                 )

BETWEEN:               ODELIA SANTOS
  Applicant

AND:                   MINISTER FOR IMMIGRATION
  AND MULTICULTURAL AFFAIRS
  Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       8 MAY 1997

MINUTE OF ORDERS

The Court orders that the application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 924 OF 1996  GENERAL DIVISION                  )

BETWEEN:               ODELIA SANTOS
  Applicant

AND:                   MINISTER FOR IMMIGRATION
  AND MULTICULTURAL AFFAIRS
  Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       8 MAY 1997

REASONS FOR JUDGMENT

TAMBERLIN J:

This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 24 October 1996, holding that the RRT had no jurisdiction to review a decision of the Minister's delegate refusing an application for a protection visa. The basis of the decision was that the review application was out of time.

The error of law alleged is that the RRT wrongly applied reg 5.03(1)(a) of the Migration Regulations ("the regulations") when it decided that the applicant was deemed to have received notice of the decision refusing a protection visa. The applicant's case is that she only became aware that her application for a protection visa had been refused when she
received a letter from a compliance officer of the Department of Immigration and Ethnic Affairs ("the Department") on 30 August 1996, more than nine months after the letter was sent.

Legislation
Section 66(1) of the Migration Act (1958) ("the Act") requires the Minister to notify an applicant of a decision granting or refusing a visa. This must be done in the prescribed way.

Regulation 2.16(1) provides:

"2.16(1)For the purposes of subsection 66(1) of the Act ... , the Minister is to notify an applicant of a decision to grant or refuse a visa:

(a) .....

(b) .....

(c)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 section 53 of the Act....

Section 53 of the Act is concerned with communications by the Minister with the applicant and relevantly provides:

"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.

..." (Emphasis added)

Regulation 5.03 is concerned with the deemed date of receipt of a document which is sent by the Minister or a tribunal. It provides:

"5.03(1)For the purposes of these Regulations, and subject to specific provision elsewhere ... 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...

(2)Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document."

In the present case it is common ground that the premises to which the notification was addressed were those last given to the Minister within the meaning of s 53.

Background
The applicant arrived in Australia on 16 October 1995. She is a national of the Philippines. On 25 October 1995 she applied to the Department for a protection visa. This was refused on 21 December 1995.
A notice of the refusal of the application was sent by certified mail to the applicant. That notification is dated 21 December 1995. The contents of the letter complied with the legislative requirements. The notification of the decision was contained in an envelope which was correctly and fully addressed and sent by certified mail to the only address ever supplied by the applicant, namely 88 Despointes Street, Marrickville. The applicant's evidence was that she was resident at that address in the week commencing 25 December 1995 and remained resident at that address, at least up to 24 March 1997. However, the letter was returned to the Department bearing a Post Office stamp "RETURN TO SENDER" on the envelope. The stamp bore a date of 27 December 1995 on the outside of the envelope which also indicated that the addressee was unknown at the address, 88 Despointes Street, Marrickville.  The returned envelope was received by the Department on 2 January 1996.

The applicant gave evidence she first became aware that a decision had been made with respect to her application on 30 August 1996, when she received the letter from the compliance officer of the Department. 

Before the RRT it was submitted by the applicant that the letter was not a notification for the purposes of s 66 of the Act.

The importance of the notification date is that the decision of the Minister's delegate refusing the protection visa is an RRT-Reviewable decision (s 411). Section 412(1) of the Act requires that an application to review an RRT-Reviewable decision must be given to the RRT within a period not later than 28 days after the notification of the decision. There is no provision for extension of time.

Submissions
The applicant's first submission is that the Minister is not entitled to rely on reg 5.03 where there is clear evidence that the notice was not in fact delivered to the applicant and was returned to the Minister within 7 days after the date of the notice.  Reference is made to an Explanatory Memorandum where it is said that:

"Regulation 5.03 will ensure that the Minister, clients, representatives and review bodies, will know exactly when review rights expire."

On the basis of this quotation the applicant says that the regulation is only intended to operate to provide certainty as to the date by which review rights expire, namely after 35 days (28 days plus the 7 day deeming period in reg 5.03).

In order to attract the operation of reg 5.03 it is necessary that the notice is sent within 7 days after the date of the document (subreg 2). This subregulation does not constitute an exception to a general rule but is rather a condition precedent to the attraction of the rule. Accordingly, the onus of proving that the letter was sent within 7 days lies on the Minister: cf Vines v Djordjevitch (1955) 91 CLR 512 at 519-520; Attorney-General (ACT); Ex rel Olaseat Pty Ltd v Australian Capital Territory Minister for Environment, Land and Planning (1993) 43 FCR 329; Minister for Immigration and Ethnic Affairs v Tang Jia Xin (1993) 47 FCR 176. This onus has been satisfied in the present case because the RRT accepted, and there has been no challenge, that the Department's Certified Mail Register confirms that the letter was sent on 21 December 1995. Furthermore, the stamp on the envelope under the note "RETURN TO SENDER" refers to a ticked box with the side description "UNKNOWN AT ADDRESS" and a date 27 December 1995 which indicates that the letter must have been sent within the 7 day period.

Section 53 it is further submitted, is intended to come into effect only where a notification is sent and in fact received by the applicant at a date later than 7 days after the date of the notification letter.

The notification of the decision is clearly a notification to the applicant within s 53.  The Minister, by his delegate, has sent a notification to the applicant at the prescribed address. In these circumstances, even if an applicant can establish that notification was never in fact received, s 53(3) provides that it must be taken to have been received by the applicant, even if in fact it was not received.
In my view, s 53 is designed to prevent disputes as to non-receipt of notifications. Once the condition precedent of sending the notice to the specified address is satisfied then the notification is taken to have been received. The subsection is not expressed to be subject to contrary proof. It is conclusive in the interest of certainty as to notifications and expiry dates for review applications.

In my view, there is sufficient evidence to establish sending and it must follow that the notification must be taken to have been received. The fact that the applicant was not actually aware of the notification until nine months later is not relevant.

The expression "is taken to have been received" is a variant on the expression "is deemed to have been received".  "Deeming" is a well-known device used in legislation to create a statutory fiction which in some cases, but not all, may be contrary to the fact: Loizos v Carlton & United Breweries Ltd (1994) 94 NTR 31 at 32; Coates v Commissioner for Railways (1961) 78 W.N. (NSW) 377; Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696.

An additional submission is advanced that reg 5.03 cannot operate until there has been proper delivery of a notification to the applicant's address and an effective "communication" by the Minister to the applicant. The purposes of the regulation, it is said, is "communication" with the applicant.
Again, s 53 in terms provides an answer. It specifically contemplates that a notification is effective even where it was in fact not received. Accordingly, actual communication is clearly not essential to notification for the purposes of s 66.

The statutory notification process is that s 66 requires notification. Regulation 2.16 enables this to be done by sending a notice to the specified address. Where this is done, reg 5.03 deems the document to have been received 7 days after the date of the notice.  Accordingly, the notification of the decision in the present case, is deemed to have taken place on 28 December 1995 and therefore the RRT did not have jurisdiction to review the decision of the Ministerial delegate.

It was faintly suggested that there was no evidence to rebut a possibility that the person delivering the letter had entered the wrong premises. However, this suggestion is pure speculation in the absence of any evidence to this effect and cannot be given any weight. Consistent with the evidence there are many possibilities which could have occurred, including the fact that the applicant was at home but someone had wrongly answered a query by the person attempting to deliver the letter. A stranger may have been residing on the premises and so forth. These are matters of speculation and cannot bear on the operation of the statutory scheme to the circumstances set out earlier in these reasons.
Accordingly, the application for review is dismissed.  However, given the circumstances of this case I make no order as to costs.

I certify that this and
the preceding eight (8)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.

Associate:

Date:  8 May 1997

Counsel for Applicant:           Ms Alison Drayton

Solicitor for Respondent:        Australian Government Solicitor

Date of Hearing:               3 April 1997

Date Judgment Delivered:              8 May 1997