Vinod, Kamal v Minister for Immigration and Multicultural Affairs

[1996] FCA 735

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 310 of 1996
GENERAL DIVISION                 )

BETWEEN:

KAMAL VINOD
  Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

Ms P. McINTOSH CONSTITUTING THE REFUGEE REVIEW TRIBUNAL

Second Respondent

CORAM:    SACKVILLE J.
PLACE:    SYDNEY
DATE:     14 August, 1996

REASONS FOR JUDGMENT
The applicant is a citizen of Fiji, of Indian ethnicity, now aged 44.  He arrived in Australia on 6 October 1987 and was subsequently joined in this country by his wife and two children.  He seeks review of a decision made by the Refugee Review Tribunal ("the Tribunal") on 11 March 1996.  The Tribunal concluded that the applicant, his spouse and dependent children were not refugees within the meaning of the convention relating to the Status of Refugees, and were therefore not entitled to protection visas under the Migration Act 1958 (Cth) ("the Act"), s.36; see also s.31(3) of the Act; Migration Regulations, reg. 2.03, Schedule 2, Subclass 866. 

The application has been prepared with the assistance of a migration agent, but not a legal practitioner.  It seeks review of the decision on the ground that the Tribunal failed to give sufficient weight to the facts presented by the applicant to support his claim that he faces a real chance of persecution on his return to Fiji because of his race, religion and involvement with the Fiji Labour Party.

The applicant filed his application for review on 18 April 1996.  The application states (incorrectly) that the decision of the Refugee Review Tribunal was made on 13 March 1996 and that it was deemed to have been received by the applicant on 20 March 1996.  The application does not refer to any provision that has the stated effect, but it seems that the reference to deemed receipt of the decision is based on Migration Regulations, reg. 5.03.  Regulation 5.03 provides as follows:

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

The reason why 20 March 1996 was selected as the deemed date of receipt appears to be that the Tribunal sent the applicant a copy of the Tribunal's decision under cover of a letter dated 13 March 1996.  The evidence before me indicates that letter was addressed to the applicant's residential address, but it does not clarify the means by which the letter was sent.  The relevant parts of the letter are as follows:

"I enclose a copy of the Tribunal's decision on your application for review.  A copy of the decision has also been sent to the Department of Immigration and Ethnic Affairs.

The Tribunal has decided that you are not a refugee, which means you are not entitled to a Protection Visa.  Should you have any questions regarding your current status in Australia you should contact your regional office of the Department of Immigration and Ethnic Affairs.

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."

It should be noted that s.430(2) of the Act imposes an obligation on the Tribunal to give the applicant a copy of the decision and reasons within 14 days after the decision was made.

If it is correct that the decision was received by the applicant on 20 March 1996, a difficulty arises in the applicant's path. This is because the application was not filed until 18 April 1996, 29 days after 20 March 1996. The Act, as amended from 1 September 1994, imposes a rigid 28 day
time limit on applications for review by the Federal Court of "judicially reviewable decisions" (which include decisions of the Refugee Review Tribunal: s.475(1)(b)).  The time limit is imposed in the following way.

Section 476 provides for application for review by the Court of judicially-reviewable decisions on specified grounds. However, s.478 stipulates 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": s.478(1)(b). Moreover, s.478(2) prohibits the Court from extending the 28 day period:

"(2)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 Act also provides that the Court is not to exercise jurisdiction in relation to judicially-reviewable decisions, other than that conferred by the Act or s.44 of the Judiciary Act 1903 (which deals with remittal of matters by the High Court). Section 485(1) is as follows:

"(1)In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions...other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903."

If the applicant was notified of the decision on 20 March 1996, there does not seem to be any doubt that the application for review was filed outside the 28 day period prescribed by s.478(1)(b) of the Act, albeit by only one day. The date of notification is not to be counted in determining whether an application is lodged within the 28 day period: Acts Interpretation Act 1901 (Cth), s.36(1). Even so, the application was not filed until 29 days after 20 March 1996. The circumstances specified in s.36(2) of the Acts Interpretation Act 1901, which provides for extension of a period prescribed by statute in certain circumstances does not apply.

The applicant has filed a motion requesting the Court to

"exercise its authority under common law and the various relevant Acts within its jurisdiction to provide an extension of time to enable [the application for review to be heard]".

The Minister opposes the motion, on the ground that the Court has no power to extend time and the application, having been filed outside the 28 day period, prescribed by s.478(1)(b) of the Act, cannot be entertained by the Court. The Minister's position, put by Mr Markus in written submissions on his behalf, is very simple. Mr Markus submits that

(a)the relevant statutory regime is that contained in Division 2 of Part 8 of the Act (which includes ss.475-486);

(b)s.478 of the Act has the effect that an application for review must be brought within 28 days of notification of the decision and the Court is powerless to allow an applicant to lodge an application outside that period;

(c)the present application was brought outside the permitted period; and

(d)insofar as the application for review invokes jurisdiction conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth), it is misconceived, since s.485 of the Act precludes the Court exercising that jurisdiction in relation to a judicially-reviewable decision.

Although it is not relevant to the jurisdictional issues raised by the motion for extension of time, I should briefly refer to the Tribunal's decision.  The Tribunal's reasons for its decision are very detailed.  The Tribunal found that the applicant and his spouse were credible witnesses and that, prior to leaving Fiji, they had suffered persecution by reason of their race.  In the case of the applicant's wife, the experiences were described by the Tribunal as "traumatic".  The Tribunal accepted that the applicant and his wife held fears of persecution if they returned to Fiji.  Nonetheless, the Tribunal concluded that the test of a "well-founded fear" of persecution for a Convention reason, as stated by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, had not been satisfied. The Tribunal reached this conclusion, primarily because important changes had taken place in Fiji since the family had left, most notably a return to parliamentary democracy and the emergence (or re-emergence) of an independent judiciary and a police force performing its proper role of protecting citizens. Accordingly, the Tribunal found that the applicant and his family did not face a "real chance" of persecution because of their race.

I should add that the Tribunal observed that there were strong humanitarian aspects to the case.  Because the reasons given for this expression relate to sensitive matters, I do not think it appropriate to repeat the details here.  However, they would presumably be relevant to any consideration by the Minister of any application based on humanitarian grounds.

When the matter came before me, the applicant's representative (a migration agent) did not dispute that Part 8, Div.2 of the Act applied to the case. He accepted that this was the position, even though the applicant applied for refugee status on 31 August 1994, one day before the amendments effected by the Migration Reform Act 1992 (Cth) came into force. I think that the concession was well-founded, having regard to a line of authority in this Court which I would follow unless and until it is overturned by a Full Court. See Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693 (FCA/Lehane J.); Mahboob v Minister for Immigration and Ethnic Affairs, FCA, Lehane J., 15 April 1996, unreported; Velmurugu v Minister for Immigration and Ethnic Affairs, FCA, Olney J., 23 May 1996, unreported; Mai v Minister for Immigration and Ethnic Affairs, FCA, Tamberlin J., 22 May 1996, unreported.

Upon that concession being made, I raised with Mr Markus a question of construction that seemed to me to arise in relation to reg. 5.03.  I pointed out that, on one view, reg. 5.03 could mean that the deemed date of receipt of the document was seven clear days after the date of the relevant document.  There seems to be no dispute in the present case that the decision of the Tribunal was sent on 13 March 1996, although by what means is not yet clear.  If the suggested construction were correct, and reg. 5.03 applied to the letter of 13 March 1996, the deemed date of notification of the decision would be 21 March 1996 and the application would have been filed on the 28th day following notification.  I invited Mr Markus and the applicant's representative to make further submissions in writing on this issue.

Until the filing of further written submissions, the Minister had accepted that the date of notification of the Tribunal's decision was to be determined in accordance with the provisions of reg.5.03.  However, in his further written submissions, Mr Markus, on behalf of the Minister, relied on the unreported decision of Moore J. in Nguyen v Minister for Immigration and Ethnic Affairs, FCA, 31 July 1996, to support a submission that reg. 5.03 is not relevant in determining the date of notification of a Tribunal decision for the purposes of s.478(1)(b) of the Act.

In Nguyen v Minister, Moore J. held that reg.5.03 was intended to identify the time at which documents are to be treated as having been received, for the purposes of other regulations which specify periods of time commencing on the day an applicant is notified of a decision. However, the regulation was not intended to operate on a provision of the Act to impute receipt of a notice, for example so that the time specified in s.478(1) of the Act commences to run from the time of imputed receipt (pp.10-11). His Honour took the view that the expression "the applicant being notified" in s.478(1) of the Act meant actual notification to the applicant. I do not think it necessary to analyse Moore J.'s reasoning in detail. In my opinion the appropriate course is to follow his Honour's decision.

The mode of service of Tribunal decisions is governed by reg. 4.40, made pursuant to the power conferred by s.504(1)(e) and s.504(3) of the Act:

"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."

It follows from Moore J's decision that, if service of the Tribunal's decision is effected in accordance with reg.4.40, the date of notification will be the date of actual receipt by the applicant of the documents served.

Neither party has adduced evidence of the date of actual receipt of the letter of 13 March 1996. Although the letter appears to have been sent on 13 March 1996, the Minister has not yet tendered evidence that the letter was properly addressed and posted by prepaid post to the applicant. If such proof is forthcoming, and if there is no evidence of actual receipt, the Minister may be entitled to rely on the presumption created by s.29 of the Acts Interpretation Act 1901 (Cth), that service by post is effected at the time at which the letter would be delivered in the ordinary course of post.

I shall give the parties the opportunity to adduce further evidence, should they wish to do so.  I shall also give the Minister an opportunity to regularise his position, if so advised, by filing an objection to competency.

I certify that this and the preceding 9 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated:14 August, 1996

Heard:31 July 1996 and 14 August 1996

Place:            Sydney

Decision:14 August, 1996

Appearances:      Mr T. Laba Sakis, Migration Agent, assisted the applicant.

Mr A. Markus of the Australian Government Solicitor's Office, appeared for the respondent.