SZIVA v Minister for Immigration & Anor
[2006] FMCA 1494
•19 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIVA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1494 |
| MIGRATION – RRT decision – jurisdictional error conceded – operation of s.477 time limit – ‘actual notification’ of Tribunal’s decision – formal notification and actual communication to applicant required – notice to agent alone insufficient – Tribunal complied with notification requirements – agent conveyed notification to applicant – applicant had actual notice – subjective understanding not required – application dismissed as incompetent. |
Acts Interpretation Act 1901 (Cth), s.29
Evidence Act 1995 (Cth), ss.160, 182(4A)
Migration Act 1958 (Cth), ss.66, 119, 127, 129, 132, 368‑369, 379C, 379G(2), 417, 424A(1), 430‑431, 430A, 430B(5), 430B(6), 430B(9), 430C, 441A, 441A(1)(a)(i), 441A(4)(c)(i), 441C, 441C(4), 441G, 441G(1), 441G(2), 474(1), 476, 476(1), 477, 477(1), 477(2), 477(4), 483A, 486A, 494C, 494D(2), 501G, Pt.7 Divs.5, 7A
Migration Legislation Amendment Act (No.1) 1998 (Cth)
Migration Legislation Amendment (Electronic Transactions and Methods of
Notification) Act 2001 (Cth)
Migration Litigation Reform Act 2005 (Cth), Sch.1 cll.28, 41, 42(a)
Migration Regulations 1994 (Cth), regs.4.39, 4.41, 5.03
B v B (mental health patient) [1980] 1 WLR 116
Chan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308
Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693
Commonwealth of Australia Constitution Act, s.75(v)
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Cujba v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 110, [2001] FCA 699
Cuong Van Nguyen v Refugee Review Tribunal (1997) 74 FCR 311
Doukmak v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 432, [2001] FCA 1821
Dranichnikov v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 482, [2000] FCA 63
Fish v Solution 6 Holdings Ltd [2006] HCA 22
Handa v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 95
Joshi & Anor v Minister for Immigration & Multicultural Affairs (2001) 116 FCR 87
McRae v Coulton (1986) 7 NSWLR 644
Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142
Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550
NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184
Newall v Minister for Immigration & Multicultural Affairs [1999] FCA 1624
Nguyen v Minister for Immigration & Anor [2006] FMCA 1495
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Alcan Australia Ltd & Ors; Ex parte FIMEE (1994) 181 CLR 96
Rios v Minister for Immigration & Multicultural Affairs [2001] FCA 1313
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272
Shan Lian Qiu v Minister for Immigration [2006] FMCA 389
Shergold v Tanner (2002) 209 CLR 126
SZBVC v Minister for Immigration [2006] FMCA 834
SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
SZEKC v Minister for Immigration & Multicultural Affairs [2006] FCA 1065
SZICV v Minister for Immigration & Anor [2006] FMCA 1063
Tien v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80
VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407
WACB v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 210 ALR 190, (2004) 79 ALJR 94
Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235
Bennion, F. A. R. (1992), Statutory Interpretation – A Code, 2nd edition, Butterworths, London.
| Applicant: | SZIVA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1333 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 14 September 2006 |
| Date of Last Submission: | 9 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Dr M Perry QC (written submission only) and Ms B Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed as incompetent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1333 of 2006
| SZIVA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 9 May 2006 seeking to invoke the Court’s jurisdiction under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”). It seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 May 2000 and handed down on 7 June 2000. The Tribunal affirmed a decision of a delegate made on 30 June 1999 which refused to grant a protection visa to the applicant.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) if the Tribunal’s decision is a “privative clause decision”. It is such a decision unless I am satisfied that it was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (“Plaintiff S157”)). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.
The time limit under s.477
The Court’s jurisdiction under s.476(1) is subject to a time limit under s.477(1), which requires that an application “must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision”. The Court has under s.477(2) the power to “extend that 28 day period by up to 56 days” if the application for an extension of time is made within 84 days of the actual notification of the decision, and the Court is “satisfied that it is in the interests of the administration of justice to do so”.
The Court has no other power to overlook or extend the time limit, and in my opinion all applications brought outside the 84 day limit are clearly incompetent. There are now numerous decisions in this Court which have so held, including my decisions in SZBVC v Minister for Immigration [2006] FMCA 834 and SZICV v Minister for Immigration & Anor [2006] FMCA 1063 (“SZICV”). Cowdroy J in SZEKC v Minister for Immigration & Multicultural Affairs [2006] FCA 1065 upheld such a decision. I follow my reasons in those cases, and shall not repeat them.
The Migration Litigation Reform Act 2005 (Cth), which introduced the present provisions of ss.476 and 477, repealed the provisions of s.483A which previously gave this Court a jurisdiction to review decisions such as the present (see Sch.1 cl.28). A further transitional provision in Sch.1 cl.41 provided that the new jurisdiction and time limitation provisions apply to all proceedings “in relation to a migration decision that are commenced on or after the commencement day”. It is therefore clear that any application for judicial review, which is brought in this Court after 1 December 2005 in relation to a previously made migration decision, must satisfy the jurisdictional limitations provided in new ss.476 and 477.
However, a special transitional period of grace was permitted in relation to applications challenging old decisions. As my judgments cited above explain, in relation to applications under s.476(1) concerning a decision made before its commencement on 1 December 2005, Sch.1 cl.42(a) of the amending Act provided that s.477 applies “as if the actual notification of the decision took place on the commencement day”, if “actual notification of the decision is given before the commencement day”.
The combined effect of the transitional provisions is that an application in relation to a decision published before 1 December 2005 is incompetent if it is filed in the Court on and after Friday 24 February 2006, but only if the Court can be satisfied that actual notification occurred prior to 1 December 2005. If it is not so satisfied, the time allowed for commencing a proceeding will continue to run unless a bar arises directly by reason of s.477, that is, calculated from such date subsequent to 1 December 2005 at which the Court is satisfied that the applicant received actual notification. If the Court is left undecided whether the application was brought within time, with or without an extension under s.477(2), then the application cannot be dismissed as incompetent, since “the Minister [has] the burden of establishing lack of competency” (see WACB v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 210 ALR 190, (2004) 79 ALJR 94 (“WACB”) at [9]).
In the present case, the applicant did not commence his judicial review proceeding until after the commencement of the new jurisdiction, and more than six years after the Tribunal handed down its decision. The Minister contends that the applicant received actual notification of that decision during 2000, both personally and through the agency of his migration agent appointed to receive such notifications. I am accordingly requested to dismiss the application as incompetent. The Minister also submits, in the alternative, that if the Court has jurisdiction it should dismiss the application even if it is affected by jurisdictional error, because the applicant’s long delay before approaching a court was unwarranted.
For his part, the applicant maintains that he did not receive actual notification of the decision until 26 April 2006. If I accept this, the applicant’s application was brought within the mandatory 28 days under s.477(1). His original application contained an application for an extension under s.477(2), but he would not need such an extension. If I do not accept his evidence, and find that he received actual notification in 2000, then the application must be dismissed as incompetent. On either basis, issues in relation to the making of an extension application which I discussed in SZICV do not arise.
I cannot avoid an exploration of the applicant’s evidence as to “actual notification”, by going straight to the substantive merits of the judicial review application, since the Minister concedes, correctly in my opinion, that the Tribunal’s decision was affected by jurisdictional error. The jurisdictional error can be explained briefly, as can the background to the case.
Background to the proceeding
The applicant’s protection visa application was lodged on 21 June 1999. It made obscure claims to fear persecution if he returned to his country of nationality, the People’s Republic of China. He claimed that he and his family had been persecuted for participating in an underground Christian church and in democratic political movements. No details or corroboration were ever provided, but the applicant attended a hearing held by the Tribunal on 17 May 2000.
In its statement of reasons, the Tribunal referred to “clearly significant contradictions” between the applicant’s claims in his protection visa, and the material upon which he obtained temporary business visas to visit Australia. It said that it put these to the applicant, and “his responses were themselves inconsistent, implausible, evasive, or non‑responsive”. It made a general finding that “I do not accept that the applicant is a witness of truth”, and applied this, with additional reasons, to each of the elements in the applicant’s refugee claims. It is clear that the Tribunal had abundant reasons for rejecting the credibility of the claims, but a small part of its reasons was information taken from the visa applications made to the Department. As a result of judicial expositions of the Tribunal’s obligations under s.424A(1) of the Migration Act, which occurred five years after the Tribunal’s decision, it is clear that its decision could now be set aside by the Court if an application has been commenced within its jurisdictional competence (applying SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214).
It is therefore necessary to examine the date of “the actual (as opposed to deemed) notification of the decision” of the Tribunal within s.477.
Because the decision was handed down in June 2000, the relevant requirements as to notification, both “deemed” and “actual” must be examined without reference to substantial amendments which were made to the Migration Act and Regulations with effect from August 2001, in relation to the procedure for notification to an applicant and his “authorised recipient”. I shall refer below to the notification provisions of the Migration Act relevant to the present decision, when addressing the evidence as to how the applicant received actual knowledge of the Tribunal’s decision.
However, it is useful when interpreting the 2005 amendments to consider the effect of the 2001 amendments. This is because the 2001, and still current, provisions which were introduced by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth) assist to explain the concept of “actual notification” introduced by the 2005 amendments.
“Actual (as opposed to deemed) notification of the decision”
Division 7A of Part 7 of the Migration Act now includes in s.441A a provision as to the procedures for service required to be followed when the Tribunal is required to “give a document to a person”. They include dispatch by prepaid post to “the last address for service provided to the Tribunal by the recipient in connection with the review” (see s.441A(4)(c)(i)).
Division 7A also includes s.441C, which has the heading “when a person other than the Secretary is taken to have received a document from the Tribunal”. In relation to service of a document by post, s.441C(4) provides that, if its specified posting procedures have been followed, then “the person is taken to have received the document” 7 working days after it was dispatched within Australia. Similar provisions deem the effecting of personal service of documents given by the Migration Review Tribunal (see s.379C), and by the Minister (see s.494C).
There is a body of judicial authority which construes the effect of these provisions as conclusively establishing service of documents, where service is a precondition to a power or jurisdiction conferred by the Migration Act, even if there was no actual receipt by the applicant, or by his or her agent, or by another person notified as the recipient authorised for that purpose under s.441G (see NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 and other cases cited in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at 564). Recent cases have emphasised that these deemed notification provisions take this effect, even if this results in a denial of procedural fairness (see VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14], Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39], SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 at [17], and Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142).
In my opinion, it is clear that these deeming provisions in relation to the effecting of service significantly explain the reference to “actual (as opposed to deemed) notification” in s.477. These words have the effect that reference may not be made to the Migration Act provisions which artificially deem the receiving of notice of decisions, when considering the competence of applications invoking the Court’s jurisdiction defined by ss.476 and 477.
The exclusion of deemed service would also not appear to be confined to the provisions of the Migration Act, and may extend to the application of presumptive provisions such as s.29 of the Acts Interpretation Act 1901 (Cth) and ss.160 and 182(4A) of the Evidence Act 1995 (Cth).
Further questions, which I address below, are whether the words also exclude service upon an applicant’s agent, and what is required to establish “actual” notification.
The requirement that time should run only from “actual notification” may well be explained by the time limits in the same terms as s.477 which were introduced by a new s.486A in relation to the High Court’s Constitutional jurisdiction, and a concern as to the validity of legislation which would exclude access to that jurisdiction to a person who never received “actual notification”. In Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, Callinan J at [173]‑[176] considered that the Parliament had power only to impose a time limit to regulate proceedings for relief under s.75(v) of the Constitution which was “truly that and not in substance a prohibition”. The other justices did not find it necessary to consider this aspect (c.f. Gleeson CJ at [42], and Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [86]‑[91]).
From this background, I turn to consider the interpretation of “actual (as opposed to deemed) notification of the decision” in s.477. A tension immediately becomes apparent, when considering the effect of the words “actual (as opposed to deemed)” and “notification of the decision”. This is that “notification” might appear to invoke, and require observance of, the Migration Act’s many technical and artificial procedures in relation to service of a decision. Yet “actual” might appear to suggest a disregard of those requirements, and to require consideration only of whether, in fact, the decision has been communicated to the applicant. As I shall explain, in my opinion, the tension should be resolved by interpreting s.477 to require both of these things before the time limit takes effect.
“Notification”
There is no doubt that the Migration Act encompasses a technical concept of “notification”, and that the use of that word in s.477 is capable of requiring conformity with the various substantive and procedural requirements of the Migration Act for notification of the “migration decisions” which might become the subject of a judicial review application to this Court. If the word conveys this technical meaning, then it may not be enough for an applicant only to have received actual communication of the “decision” which he seeks to challenge. Time would not commence to run unless or until the decision‑maker had also complied with all legal requirements, if any, as to notification on the person making the judicial review application, including as to accompanying reasons, advice on appeal rights, and manner and time of service, etc.
There are many examples of a variety of such requirements throughout the Migration Act, both in relation to primary decisions and decisions by administrative review bodies. Some are in sections expressly titled “notification of decision”, and others are in codes of procedures for handing down Tribunal decisions (c.f. ss.66, 119, 127, 129, 132, 368‑369, 430‑431, 501G). It would not be productive for me to examine them in this judgment. On a construction requiring the satisfaction of formal requirements of notification, it becomes necessary for the Court to examine closely what were the statutory requirements as to notification of the particular decision on the person bringing the judicial review application. As a substantial body of authority shows, this can at times be a difficult task.
In WACB (supra) the High Court construed the meaning of the phrase “within 28 days of the applicant being notified of the decision”, appearing in an earlier time limit on the migration review jurisdiction of the Federal Court (see SZICV at [13]). The majority judgment traced the history of this provision, and accepted that notification could not occur unless there was compliance with a requirement of the Migration Act that a statement of reasons should accompany the giving of reasons. The majority judgment also construed the concept of “being notified” as requiring physical delivery to the appellant, while noting that the 2001 deeming provisions were inapplicable to the matter before them (see [40] of their judgment). They said:
[36]If this submission were correct it would leave open the issue of that which constitutes notification in s 478(1)(b), presumably to be filled by reference to its ordinary meaning, and it would ignore the structure and historical development of the Act. However, the construction of s 478(1)(b) is apparent from the text and structure of the Act itself. Hence, such a submission, which at first blush may appear to have merit due to the equivalent language in ss 478(1)(b) and 430(1)(a), should be rejected. Notification of the decision under s 478(1)(b) requires that the code in Pt 7, Div 5 (the RRT) or in Pt 5, Div 6 (the MRT) be observed. In all cases, other than where the tribunal decision is given orally, notification of the decision for the purposes of s 478 occurs when the written statement is given to the applicant for review by the Federal Court.
[37]At the relevant time, the word “give” used in s 430D(2), the applicable provision in this case, was not defined. Accordingly, it is the ordinary meaning of the word, understood in its context, that must be considered. The context is that the RRT must give the applicant a copy of the written statement. In that setting, to give a document ordinarily requires its physical delivery, not some act of constructive delivery of possession which, at general law, may suffice to transfer property in a chattel. It will not be enough to communicate to the applicant orally that the document has arrived, or to communicate the gist of the document, or even to read the document to the applicant. What is required is that the written statement be physically given to the applicant. Only once this has occurred can it be said that s 478(1)(b) is enlivened and time begins to run. The appellant’s evidence that the written statement was not “given” until requested by him from Ms Alamar “some” weeks after he was told of the adverse decision by the RRT has not been controverted by the Minister who had the burden of establishing the objection to competency. (citation omitted)
The language of current s.477 differs from the provision considered in WACB, in particular, because the reference to “notified of the decision” was not complicated by the requirement that notification be “actual (as opposed to deemed)”. However, the interpretation taken in that case should, in my opinion, be followed when construing the new time limit provisions. It was adopted by the High Court of Australia in relation to a predecessor provision, and should be assumed to have been in the mind of the legislature when they again used the term “notification” in s.477 (see Re Alcan Australia Ltd & Ors; Ex parte FIMEE (1994) 181 CLR 96 at 106‑107, but c.f. Fish v Solution 6 Holdings Ltd [2006] HCA 22 at [125]).
The approach taken in WACB therefore requires an interpretation of the reference in s.477 to “notification” as encompassing only a notification which has complied with all essential requirements attaching under the scheme of the Migration Act and Regulations, if any, to a notification of the type of decision sought to be reviewed on the person applying for judicial review. This still leaves the added requirement of whether formally correct notification has also resulted in “actual” notice.
I note that a similar construction of the word “notification”, albeit in a different context, was adopted and strictly applied by Gray J in Chan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308 at [41]‑[53]. I was also referred by counsel for the applicant in Nguyen v Minister for Immigration & Anor [2006] FMCA 1495 [which I have delivered at the same time as the present judgment], to other cases where the Federal Court addressed various notification requirements (including Doukmak v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 432, [2001] FCA 1821; Shan Lian Qiu v Minister for Immigration [2006] FMCA 389; Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; Cujba v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 110, [2001] FCA 699; Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235; Tien v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80; Newall v Minister for Immigration & Multicultural Affairs [1999] FCA 1624; Rios v Minister for Immigration & Multicultural Affairs [2001] FCA 1313; and Dranichnikov v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 482, [2000] FCA 63). Some of these cases go further than requiring strict conformity with express notification requirements, by finding implicit requirements in the migration legislation, for example, that a notification letter should not contain statements or advice which might “frustrate or negate” rights of judicial or administrative review (c.f. authorities considered by Moore J in Doukmak (supra) at [34]‑[39]).
I must now consider the content of the added requirement that a date must be identified when a technically sufficient notification has also achieved “actual notification”.
“Actual … notification” to an agent?
As is apparent from the provisions of Part 7 Divisions 5 and 7A, a formally complying notification of a decision may well have been correctly despatched by the Tribunal to either an applicant or his agent or both of them, yet might not have come to the applicant’s actual attention. What then, would satisfy the requirement that there should also be an “actual notification”.
Several aspects need to be considered. The first, concerns an applicant who has requested that notifications should not be communicated personally, but should be given to an authorised recipient or agent. Flowing from this situation, which must have been within the contemplation of Parliament, there needs to be considered what further communication needs to occur after a technical notification, and what degree of awareness or comprehension of the “decision” is required, before the notification becomes “actual”.
A consideration of notification to an agent raises immediately whether the requirement of “actual notification (as opposed to deemed)” was intended to exclude entirely the operation of principles of agency which deem notice to an agent to amount to notice to the principal. The normal principle is that a legislative reference to an action performed by a person is intended to allow that action to be performed by his agent authorised for that purpose, and this would include an agent appointed for the purpose of receiving correspondence (c.f. Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693 at 700; McRae v Coulton (1986) 7 NSWLR 644 at 663; and B v B (mental health patient) [1980] 1 WLR 116 at 121, cited in F. A. R. Bennion “Statutory Interpretation – A Code”, 2nd Edn. (1992), at p.799‑800).
The references in s.477 to actual “as opposed to deemed” notification might appear sufficiently explained by the policy to exclude reference to deemed service provisions, which I have discussed above. It might have been expected that the legislature would show in clearer terms, if the jurisdiction of the courts in judicial review was also intended in every case to run from a date of actual receipt by the applicant in person, and not by his or her or (if a corporation) its authorised agent. It may be significant, in this respect, that s.477 does not expressly require “actual notification of the decision to the applicant”, but refers to “notification” in passive and non‑specific terms. This might suggest that it intends the various methods of notification to an agent to operate effectively, but with an added requirement that such notifications produce actual receipt by the agent.
In a written submission filed after the hearing, Dr Melissa Perry QC for the Minister argued that actual notification to an agent would be sufficient for the purposes of s.477. She submitted that it was significant that s.477(1) did not identify the person who must be notified. She did, however, acknowledge that the explanatory memorandum to the bill stated that s.477(1) required an application “within 28 days of the applicant receiving actual notification of the decision”.
Dr Perry also referred to s.477(4), which provides that “the regulations may prescribe the way of notifying a person of a decision for the purposes of this section”. She noted that this did not refer to “the way of notifying an applicant” of a decision, but used a more general reference to “a person”. No regulations have been made under this provision, and it is difficult to envisage what they might contain, consistent with the intent of s.477(1) and (2) that ways of notification must be “actual (as opposed to deemed)”.
In my opinion, the absence of reference to “an applicant” in ss.477(1) and (2) and the reference to “a person” in s.477(4), are understandable on the basis that s.477 is intended to encompass any person with standing to challenge a migration decision. The draftsperson therefore did not wish to appear to confine the persons who could make application to the Court to a person who for other purposes of the Act was an “applicant”. I therefore do not consider that these points assist the present issue of construction.
Dr Perry also sought to obtain support from the fact that there are express provisions for notification of decisions to an agent. Where the applicant attends the handing down, the Tribunal has an obligation under s.430B(5) to “give [the applicant] a copy of the statement” of decision and reasons under s.430. Section 430B(9) then provides that “a reference to the applicant … being present at the handing down of the decision includes a reference to a representative of the applicant …”. If neither the applicant nor his or her representative are present, the Tribunal must under s.430B(6) “notify the applicant of the decision by giving the applicant” a copy of the statement within 14 days by a method under s.441A. Under s.441G(1) this would include an obligation to give the statement to an authorised recipient “instead of the applicant”. As I understood her submission, Dr Perry argued that it was significant that the Act contained express provision for giving the statement to an applicant’s agent rather than to the applicant.
However, these provisions of the Act must also be considered in the light of provisions which deem both species of notification to an agent to be a notification to the applicant. Thus, s.430C provides:
Applicant taken to be notified when representative notified
(1)If a representative of the applicant is present at the handing down of a decision under section 430B, the applicant is taken to be notified of the decision on the day on which the decision is handed down.
(2)If a representative of the applicant is notified of a decision under subsection 430B(6), the applicant is taken to be notified of the decision on the day on which the representative is so notified.
Other provisions generally deem decisions to have been given to an applicant when posted or otherwise given to an authorised recipient (ss.379G(2), 441G(2) and 494D(2)). The unqualified exclusion of “deemed” notifications in s.477, therefore, appears readily capable of extending to service of decisions on an agent relying upon such provisions, even where they resulted in the agent receiving “actual” notice. If s.477 has this effect, then it would be consistent to read the language of “actual (as opposed to deemed) notification” as also extending to the application of general principles of agency law, so as to exclude the whole field of non‑personal service.
In my opinion, the words “as opposed to deemed” are broad enough to exclude reference to statutory provisions or common law which would attribute actual receipt by an agent to be actual receipt by the applicant. As I have explained, I cannot find an intent to confine the words by reason of the general scheme and legislative context of the Migration Act. Upon the principle that a conferral of jurisdiction on a Court is remedial in nature, and that jurisdictional limitations should be construed in favour of allowing access to the Court, I have decided that I should adopt an unqualified interpretation (c.f. Shergold v Tanner (2002) 209 CLR 126 at [34], Plaintiff S157 at [72], and WACB at [32]). On this interpretation, the time limit under s.477 does not take effect if a notification resulted in actual notice of the decision being received only by an agent and not by the person seeking judicial review.
However, the point is not without difficulty, and I therefore shall address the evidence before me in the present case both as to notice of the Tribunal’s decision on the part of the applicant’s agent, and also on the part of the applicant personally.
The evidentiary content of “actual notification”
A further issue as to the meaning of “actual notification” arises generally, but is particularly relevant where notification has been given to an agent in accordance with statutory procedures. This is the content of the further “notification” which is required to have occurred before there has been “actual (as opposed to deemed) notification” by the applicant in the court proceeding.
At this stage in its construction, the section must be invoking concepts of notification of government decisions derived from common parlance and experience. This must be considered in the context of the policy of s.477, which seeks to allow a Court to determine a point in time when a person affected by a migration decision should be expected to have commenced his or her consideration of making a judicial review application.
According to the Macquarie Dictionary “notification” means: “1. the act of notifying, making known, or giving notice; 2. a formal notifying, or informing; 3 a notice”. “Notify” means: “1. to give notice to, or inform, of something; 2. to make known; give information of”. “Actual” means: “1. existing in act or fact; real; 2. now existing; present”.
In my opinion, s.477 requires the Court to investigate the date when the applicant to the Court personally received notice of the decision and any accompanying statements. The notice required to have been received is notice of the existence and availability to the applicant of the decision and any relevant documents. I do not consider that the language requires the Court to be satisfied in all cases that, in fact, the applicant has received actual physical possession of such documents. If an agent has been employed to receive and advise in relation to decisions, and has communicated and explained the notification to the applicant, I consider that the Court would be able to be satisfied that there has been actual notification. It is enough that a point of time can be located when the relevant documents have passed into the possession or control of the applicant, and the applicant was able, if he or she so desired, to read and take advice upon them.
Nor do I consider that the Court must be satisfied that the applicant obtained actual subjective comprehension of the effect of the decision and of the contents of any accompanying notices and statement of reasons. Time is intended to run from the receipt of notification, not from the date when it has been appreciated or understood by the applicant. This would be consistent with the interpretation taken in WACB (supra) (see also Cuong Van Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 at 325 applied in Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272 at [32]). In my opinion, to give the words “actual notification” a subjective requirement, would render the time limit inoperative in most cases, and would require the Court to conduct a factual investigation which could not have been intended by the 2005 amendments.
I can now turn to consider how these points of interpretation apply to the facts of the present case.
The applicant received actual notification in 2000
In the applicant’s application for review by the Tribunal the applicant was asked to provide his “address for service”, and was told “we will send all documents to you at this address unless otherwise advised”. He gave an address in Pitt Street, Sydney, which he said was also his home address. He also gave the name of an adviser, Billie Shi, at Bestway Global Services Co, as “an adviser you authorise to act for you in relation to this application (for example a lawyer or a migration agent)”. This person had also been identified as the applicant’s agent when lodging the visa application. At the hearing before me, the applicant recognised his own signatures on both the visa application and the review application, and confirmed that he had employed the agent to help him to make his application to the Tribunal and then to apply to the Minister under s.417 of the Migration Act.
In written responses to invitations to attend a hearing which were received by the Tribunal on 31 January 2000 and 27 April 2000, the applicant’s agent gave the Tribunal a new postal address for the applicant. This was a post office box at Haymarket. The applicant in his evidence denied that this was his own postal address, and said “this address is also provided by the agent”. I find that the giving of this address to the Tribunal was done within the scope of the authority given to the agent by the applicant. It is clear that at least one letter, the invitation to the hearing on 17 May 2000, sent to the applicant at that address and to the agent, in fact came to the actual knowledge of the applicant, since he attended on that occasion. From the “Hearing Information Form” confirming his attendance, the Tribunal’s officer appears to have confirmed with the applicant that this was his postal address.
The Tribunal handed down its decision on 7 June 2000. The provisions of Division 5 of Part 7 concerning the formalities of handing down were in substantially the same terms as at present. In the present case, the Tribunal was required under s.430A to invite the applicant to be present, and to give written notice of the handing down in terms described. Such an invitation was sent to the applicant at the Haymarket post office box on 26 May 2000. The letter informed the applicant that if he did not attend: “we will send you a copy of your decision by post”.
It seems that there was no attendance by the applicant or his agent at the handing down, since by letter dated 7 June 2000 the Tribunal wrote to the applicant:
Mr [Applicant]
PO Box KXXX
HAYMARKET NSW 1240
7 June 2000
Dear Mr [Applicant]
APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA
The Tribunal handed down its decision on your case on 7 June 2000. The Tribunal decided that you are not entitled to a Protection Visa. A copy of the Tribunal’s decision and reasons is attached. A copy of the decision will also be given to the Department of Immigration and Multicultural Affairs.
The Tribunal’s file on your application is now closed.
You have the right to seek review of this decision by the Federal Court. An application for review must be lodged with the Court within twenty‑eight (28) days of notification of this decision. You are taken to have been notified seven (7) days after the date of this letter. You must name the Minister for Immigration and Multicultural Affairs as the respondent and not the Tribunal. Federal Court proceedings are not private unless an order has been made by the court suppressing your name. I strongly advise you to seek legal advice if you wish to seek review by the Court.
If you have any questions about your current residency status in Australia you should contact your regional office of the Department of Immigration and Multicultural Affairs.
Yours sincerely
for Deputy Registrar
Sydney Registry
cc:Bestway Global Service Co
320 / 413‑415 Sussex St.
Sydney NSW 2000
I find that this letter was probably posted by registered post no later than 8 June 2000, based upon the registration sticker on the file copy, and the Tribunal officer’s “Checklist For Handing Down” annotations.
The requirements in relation to such notification were then found in s.430B(6):
(6)If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is handed down; and
(b) by one of the methods specified in section 441A.
This reference to s.441A was inserted with other similar references in amendments made in 1998, and gives rise to problems in relation to notifications posted prior to the 2001 amendments. As the majority judgment in WACB noted:
[38]Although the word “give” in s 430D(2) was not defined, it was defined for the purposes of s 430B(6) (and s 368B(6)). Section 430B(6) dealt with the third method of notification described earlier in these reasons. It provided that, if the applicant was not present at the handing down of the decision, then a copy of the written statement was to be given to the applicant within 14 days by one of the methods specified in s 441A. Section 441A was provided for by Sch 3, item 12 of the 1998 Act. However, item 12 may have been ineffective because the amendment was misdescribed. The amendment sought to insert s 441A “[a]t the end of Division 7 of Part 6”. No such Division existed. Presumably the parliament intended to insert s 441A at the end of Div 7 of Pt 7, which is concerned with the RRT.
[39]In Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297, Gibbs CJ said that the canons of construction should not be treated so rigidly as to prevent the implementation of a realistic solution in the case of a drafting mistake. However, his Honour went on to say that, where the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, it must be given its ordinary and grammatical meaning. In this case it is unclear how this would be resolved. In any case, the applicable provision for this appeal is s 430D(2) (which deals with the second method), not s 430B(6). (citations omitted)
On my above opinion that the word “notification” in s.477 invokes any relevant notification procedures under the legislation operative at that time, the present applicant could not have received “actual notification” if he were not “given” the decision and reasons in accordance with s.430B(6). I must therefore consider the point, which the High Court was able to avoid, as to the significance of the drafting error.
Section 441A which the Migration Legislation Amendment Act (No.1) 1998 (Cth) (“the 1998 Act”) attempted to insert, was in the following terms:
441AMethods of dispatch of certain documents
(1)A document specified in subsection (3) is taken to be duly given to an applicant for review if:
(a)the document is sent (physically, electronically or otherwise) to:
(i)the last address for service provided by the applicant in connection with his or her application for review; or
(ii)the last residential address provided by the applicant in connection with his or her application for review; and
(b)the Tribunal has a receipt or other evidence indicating the date of dispatch.
(2)A document specified in subsection (3) is taken to be duly given to an applicant for review if the document is given:
(a)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
(b)by leaving it at the applicant’s place of residence with a person who appears to live there and appears to have turned 16.
(3)The documents specified for the purposes of subsections (1) and (2) are:
…
(e)a statement given under subsection 430B(6).
(4)It is sufficient compliance with the requirement to give a document referred to in subsection (3) if a facsimile, or a certified copy, of the document is so given.
(5)A document posted in accordance with paragraph (1)(a) must bear correct prepaid postage and, if the document is posted to an overseas address, the postage must be at the full airmail rate.
In my opinion, the Cooper Brookes principle is available in the present situation to correct a manifest carelessness in drafting (c.f. Handa v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 95 at [14]). If this provision is given its clearly intended effect, then the present letter was “duly given” for the purposes of s.430B(6) by reason of being posted to “the last address for service provided by the applicant in connection with his or her application for review” within s.441A(1)(a)(i). As I have found above, this was the Haymarket post office box.
I consider that the same conclusion may also be reached if the reference to s.441A cannot be given meaning under the Cooper Brookes principle. If that were the case, then the consequence would be that the method of “giving” the documents required under s.430B(6) would not be a matter specifically prescribed by or under the Act. If so, the Regulations covering service of documents generally by the Tribunal would apply. These were:
4.39Address for service
(1)In this regulation:
lodge an address for service, in relation to an applicant for review, means give the Tribunal notice in writing of an address at which documents relating to a review may be sent to the applicant.
(2)An applicant for review may:
(a) lodge an address for service in a review; and
(b) at any time after lodging an address for service, lodge a new address for service in that review.
(3)If an applicant for review lodges with the Tribunal a new address for service under paragraph (2) (b):
(a) that new address becomes the applicant for review’s address for service in the review; and
(b) he or she must, immediately after doing so, serve on the Minister a notice of that new address for service.
(4)An address for service may be, but need not be, the applicant’s residential address.
…
4.41Service of documents
(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 subregulation (1) if a facsimile or certified copy of the document is given or served in accordance with that subregulation.
(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.
Note A document posted in accordance with this regulation is taken to be received at a time worked out under regulation 5.03.
In my opinion, the applicant, through his agent’s “Response To Hearing Invitation” forms, gave the Tribunal the Haymarket post office box as his last address for service within reg.4.39, and the Tribunal complied with its requirements under reg.4.41 when posting to that address a copy of its decision and statement of reasons.
For the above reasons, I therefore find that the sending of the letter enclosing the Tribunal’s decision and reasons, which sought to effect both actual and deemed notification of the decision, satisfied the legislative requirements as to “notification” of the Tribunal’s decision, insofar as they governed the actions of the Tribunal in relation to communicating the decision to the present applicant.
The Note to the above regulations draws attention to the then presence in reg.5.03 of a deeming provision as to service, which had comparable effect to the present s.441C. At the time of the present Tribunal’s letter, this had been amended so as to overcome the basis upon which a Full Court previously found invalidity in reg.5.03 (see Joshi & Anor v Minister for Immigration & Multicultural Affairs (2001) 116 FCR 87). However, as I have explained above, the exclusionary words in s.477 clearly prevent my applying this provision so as to deem the Tribunal’s letter to have been actually received by the applicant in 2000.
I must therefore consider whether the decision and reasons posted by the Tribunal were, in fact, actually received by the applicant or his agent.
The answer in relation to the agent is clear. Actual receipt by the applicant’s agent on his behalf is established by a letter dated 12 July 2000 and signed by the applicant, which was received by the Minister’s Department before the end of July 2000. The opening parts of this “s.417 letter”, in my opinion, admit the receipt by its author of “the RRT refusal decision”. The letter said:
Dear Minister,
I am writing to apply for your reconsideration of my protection visa in accordance with the Act:
417.
(1) if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
…
(3) the power under subsection (1) may only be exercised by the Minister personally.
…
I come from China. I hold religious opinion that can not be tolerated by my country, and in order to realize my religious ideas, I have been actively participating in organized religious activities. I have fear that I would be severely persecuted if I returned to my country. To escape the terrible persecution, I applied to DIMA for refugee status in June 1999, which was unfortunately refused. I continued to appeal to the Refugee Review Tribunal, for I firmly believe my circumstances totally qualify me for the criteria of applying for protection visa. Once again the RRT refusal decision made me completely confused and frustrated. My whole life was filled with worries, sadness and fear. On deliberation, I find I have no alternative but appeal to you Honourable Minister for special consideration on humanitarian ground.
On its face, the author of this letter was aware of the Tribunal’s adverse decision and statement of reasons in July 2000. The applicant admits that it carries his signature, and that it was written by the agent whom he had employed to conduct his appeal before the Tribunal, and whom he had authorised to receive correspondence. It provides the same postal address as had been given to the Tribunal, and to which the Tribunal had posted its decision. I find, confidently, that the author of the letter had actually received notification of the Tribunal’s decision in July 2000, and that it is probable that the author was the applicant’s agent for the receipt of that notification. If actual receipt by the agent was sufficient for the purposes of s.477, then the present application to this Court should be found to be incompetent.
If my finding of actual notification to the applicant’s agent is insufficient to establish incompetency under s.477, the evidence that the applicant himself received the Tribunal’s decision is less clear. His original application to this Court, while seeking an extension of time, omitted to state the “date when notification of the decision was received by the applicant”, as is required by the prescribed form.
A purported affidavit filed on 12 July 2006 is signed by the applicant, but carries no certificate of translation, and at the hearing the applicant claimed not to remember its contents. It states only:
I haven’t received the RRT decision until 26th April 2006. That’s why I delay lodged the application the Federal Magistrates Court of Australia.
The applicant was cross‑examined through a Mandarin interpreter on his involvement in the sending of the July 2000 s.417 letter, on how he came to file his present application to the Court, and on what he did over the intervening six years. His evidence was unsatisfactory in many respects, and it is very difficult for me to extract any truth from his evidence. Even taking into account difficulties arising from the use of an interpreter, I find that his testimony was delivered in an unconvincing manner – with long pauses and evasion. At several points it seemed to me that the applicant may have received coaching as to what to say to the Court from the unknown “friend” who had prepared his affidavit and assisted him to bring the present case. He presented no corroborative documents or witnesses.
His explanation for not commencing proceedings earlier than May 2006 was that he had entrusted everything to his agent, and that he was never told by his agent that the Tribunal had found against his application. Although his signature appeared on the s.417 letter, this was because he had signed blank pieces of paper and forms. In every year since 2000 he had sought to contact the agent to find out what was happening, but had been unable to locate the agent. It was only this year that his friend “told me that we can go to RRT ourselves to get the document, to get the relevant documents, including the decision”. He then obtained the copy of the Tribunal’s decision which accompanied his application to this Court. As well as the general difficulties in accepting the applicant as a witness of truth, there was much in his narrative which was unbelievable, particularly his account of his attempts to locate his agent.
I do not accept the truth of the applicant’s explanation. However, the onus is on the Minister to prove that, in fact, the applicant probably had actual notice earlier than 2006 of the Tribunal’s letter enclosing its adverse decision and reasons.
I am persuaded on the balance of probabilities that this did occur, by reason of the following points:
a)On the applicant’s own evidence, he had telephone and other contacts with his agent at least until after he attended his hearing on 17 May 2000.
b)It is probable that he confirmed his agent’s details, including the post office box for correspondence, when he attended the hearing.
c)I find it improbable that the applicant’s agent would have sent a s.417 request without discussing this with the applicant.
d)I consider it more likely than not that, in fact, the applicant signed that letter after it was written, and that he was told about the intention to send the letter and the reasons for its despatch. If so, he must have been told that the agent had received an adverse decision and statement of reasons from the Tribunal, and it is probable that he was shown the documents received by the agent when he attended the agent’s office, or at least given an opportunity to obtain and read them. As I have held above, it is unnecessary for me to be able to find that the letter, the decision or the reasons were, in fact, read by the applicant and understood by him.
e)The applicant came close to conceding such an attendance. After the s.417 letter was translated to him in the witness box, he said:
Ms Rayment: This is your letter to the Minister for Immigration that you signed on 12 July 2000. Is that correct?
Applicant
(through interpreter): The contents should be similar, but I signed the paper first and then the agent prepare it for me later.
Ms Rayment: You say you signed it first. Do you recall when you signed it?
Applicant
(through interpreter): As far as I can remember, I was given a blank piece of paper to sign first and I sign first. Then the agent did everything else for me.
Ms Rayment: When?
Applicant
(through interpreter): I cannot remember the exact date. According to the document here.
Ms Rayment: On 12 July, on or about 12 July 2000?
Applicant
(through interpreter): It is definitely 2000, but I cannot remember the month and date.
Ms Rayment: Did your agent tell you that your application had been unsuccessful to the Tribunal?
Applicant
(through interpreter): I can’t remember. I told the story to the agent and then the agent told me to sign the paper. The agent then carried on.
…
Ms Rayment: If I can take you to the third paragraph on page 3 of the affidavit; that’s your letter. The second‑last sentence: “Once again, the RRT refusal decision made me completely confused and frustrated”. Is that statement correct?
Applicant
(through interpreter): Is it about my application being rejected by the RRT?
Ms Rayment: Yes, it is.
Applicant
(through interpreter): Maybe I was told about something, but I cannot remember all of them because of my English.
f)Under further questioning, the applicant gave equivocal answers to questions on whether he claimed no knowledge of his agent writing to the Minister. He said: “it was long ago, I cannot remember”, and “I’m not certain”.
g)He became obtuse when asked whether he was aware of a letter from the Department in September 2000 declining to exercise the s.417 power, and gave unpersuasive answers: “it was long ago, I cannot remember”, “I’m not certain”, and “it seems that the agent didn’t tell me”.
h)The applicant’s evidence of his actions in the subsequent years was unbelievable. I do not accept that an applicant for permanent residence in Australia would not have attempted over six years to have done more to find out the outcome of his appeal than look for a missing agent, even assuming that the agent could not be located. In my opinion, the applicant’s failure to take any step to challenge the Tribunal’s decision over many years prior to 2006 is better explained by an awareness, after communicating with his agent, that the Tribunal had made an adverse decision on his refugee claims, followed by an awareness that his agent’s subsequent efforts under s.417 had failed.
I find that the applicant personally had “actual notification” of the Tribunal’s decision for the purposes of s.477 during 2000, and at a date rendering his present application incompetent.
I therefore dismiss the application.
I certify that the preceding seventy‑three (73) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 19 October 2006
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