Santos, Odelia v Minister for Immigration & Multicultural Affairs

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…

CaseChat Overview and Summary

In the case of Santos v Minister for Immigration and Multicultural Affairs, the applicant, Odelia Santos, sought judicial review of a decision by the Refugee Review Tribunal (RRT) that it had no jurisdiction to review a decision of the Minister's delegate, which refused her application for a protection visa. The primary issue before the court was whether the applicant was deemed to have received notice of the decision to refuse the visa, despite not actually receiving it, and if such deemed receipt was sufficient for the purposes of the statutory time limits for lodging an application for review with the RRT. The applicant contended that the RRT erred in law by applying regulation 5.03(1)(a) of the Migration Regulations, which provides that a document sent by the Minister is taken to be received seven days after the date of the document.

The court considered the statutory and regulatory framework, including sections 53 and 66 of the Migration Act 1958, and regulation 2.16 of the Migration Regulations. Section 53 provides that if the Minister sends or leaves a notification to the applicant at the last address given by the applicant, the notification is taken to have been received by the applicant even if it was not received. Regulation 5.03(1) provides that a document sent by the Minister is taken to be received seven days after the date of the document, subject to specific provisions elsewhere. The applicant argued that regulation 5.03 could not operate where there was clear evidence that the notice was not delivered and was returned to the sender within seven days of the date of the notice.

Justice Tamberlin held that regulation 5.03 is a deeming provision, which is a statutory fiction that may be contrary to the fact in some cases. The fact that the applicant was not actually aware of the notification until nine months later was irrelevant. The court found that there was sufficient evidence to establish that the notice was sent within seven days after the date of the document, and therefore, the notification must be taken to have been received. The court further held that actual receipt of the decision was not necessary for notification under section 53, and that the statutory notification process is that notification is required under section 66, and regulation 2.16 enables this to be done by sending a notice to the specified address.

Accordingly, the court dismissed the application for review, finding that the RRT did not have jurisdiction to review the decision of the Ministerial delegate as the applicant's application for review was out of time. The court made no order as to costs given the circumstances of the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established