Rao v Minister of Immigration

[2015] NZHC 2669

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-482 [2015] NZHC 2669

UNDER	section 245 of the Immigration Act 2009
IN THE MATTER	of an application for leave to appeal against a decision of the Immigration and Protection Tribunal
BETWEEN	ANISH ASHNIL RAO Applicant
AND	MINISTER OF IMMIGRATION Respondent

Hearing:	30 September 2015
Counsel:	R Woods for Applicant D Soper for Respondent
Judgment:	30 October 2015

JUDGMENT OF SIMON FRANCE J

I direct that the delivery time of this judgment is

12 pm on the 30th day of October 2015

RAO v MINISTER OF IMMIGRATION [2015] NZHC 2669 [30 October 2015]

Introduction

[1]      Mr Rao is subject to a deportation order.  His appeal to the Immigration and Protection Tribunal (the Tribunal) was unsuccessful.1   He has filed an application for leave to appeal to this Court.  The respondent contends it is out of time.  The parties agree that if it is out of time, there is no power in the Court to extend the time in which to seek leave.   Accordingly, the timing issue is being dealt with as a preliminary point.

[2]      The  facts  are  not  in  dispute.     The  Tribunal  issued  its  judgment  on

15 May 2015.  A copy of the judgment, with a covering letter, was consigned that same day, via courier, to Mr Rao’s counsel, Mr Woods.

[3]      There is no record of the address on the courier package.  The address on the covering letter inside the envelope was:

Rowland Woods

Barrister

Rowland Woods Legal

Floor 1

326 Lambton Quay
Wellington Central

Wellington 6011

[4]      The package was  delivered  to  Level  1,  326  Lambton  Quay on  Monday,

18 May 2015  at  8.08  am.    It  was  signed  for  by  “Kate”.    Mr Woods’ business premises were not open at the time.  There is no one named Kate associated with his business. There are other businesses that share Level 1.

[5]      As it happens some time during the day the package ended up in Mr Woods’ offices.  Its receipt was logged into the office system in the afternoon.  The envelope was opened and the letter and judgment placed on Mr Woods’ desk.  Because he was away, Mr Woods did not see it until 23 May 2015.

[6]      The application for leave to appeal was filed on Friday, 19 June 2015.

1      Rao v Minister of Immigration [2015] NZIPT 600182.

Issue

[7]      Section  245(2)  of  the  Immigration  Act 2009  (the  Act)  provides  that  an application for leave to appeal must be filed no  longer than 28 days:

after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing.

[8]      It is common ground that if Mr Rao is taken to have been notified of the decision  on  18 May 2015  when  the  courier  delivered  it  or  when  it  reached Mr Woods’ offices, the application is out of time.  If Mr Rao was not notified on that date then the statutory default date is seven days after the package was given to the courier. Again it is common ground that if this is the date, the application is in time.

Discussion

[9]      As will be seen the Act provides a process for giving notices.  Compliance with the process brings into play a deemed date on which it can be said notice has been given.   On the other hand, in this case notice has apparently been actually achieved but arguably not in a way that complies with the Act’s processes.   The appellant argues that the statutory processes establish the only means  by which notice can be given, and that actual notice being achieved outside those processes is to be ignored.

[10]     This submission could only be correct if the proper interpretation of the statute demands such a reading.  Otherwise, the obvious answer is that the aim of the provisions is to achieve notice and that is what has happened.  Where actual service of  the  correct  notice  documentation  can  be  proved,  common  sense  and  policy suggest that should be the relevant date.

[11]     Decisions in other areas have reached that outcome.  Commissioner of Inland

Revenue v Sea Hunter Fishing Limited considered the effect of s 14(2) of the Tax

Administration Act 1994 which provided:2

2      Commissioner of Inland Revenue v Sea Hunter Fishing Limited CA142/01, 13 December 2001 at [2].

(2)       Any  notice  sent  by  post  to  any  person,  or  to  any  other  person authorised to act on behalf of that person, shall be deemed to have been  received  by that  person,  or that  other  person, when  in  the normal course of post it would have been delivered.

[12]     The purpose of the provision was plainly to provide a deeming date from when time could be taken to run.  Of this provision the Court of Appeal observed:3

[21]      … There  is  a  contrast  with  sending  by  post,  to  which  subs  (2) applies.  Then the notice is deemed to have been received when in the normal course of post it would have been delivered.  If the notice actually arrives faster than the normal course of post it would be given upon arrival.   Otherwise, the deeming provision, which is based on an estimate of when delivery would normally be expected, is to apply.

(emphasis added)

[13]     ANZ National Bank Ltd v Tower Insurance Ltd involved a different context, namely the interpretation of a service provision in a contract.4    The parties were in dispute as to whether strict compliance was needed.  The Court of Appeal focussed on the purpose of the contractual provision, and concluded that proof of actual service, even if effected by a method other than that stipulated, was sufficient.   It noted that this conclusion was consistent with the trend of modern appellate authorities on the point.5

[14]     Against that background I turn to the provisions of the Act, noting that the task is to interpret the statutory text in light of its purpose.

[15]     The Tribunal is obligated by cl 17 of sch 2 of the Act to notify an appellant of its decision, and provide a copy of it to the appellant.   Section 386A of the Act applies generally to circumstances where there is an obligation to serve a notice or document, or to supply, notify or give such notice or document.   Section 386A(3) deals with notification (as opposed to service) obligations.  It requires the notice to be in writing. The notice must be:

(a)       given to the person personally; or

3 At [21].

4      ANZ National Bank Ltd v Tower Insurance Ltd [2010] NZCA 267.

5 At [35].

(b)      sent to the person’s contact address.

[16]     Here  Mr Rao  had  signed  an  authority  nominating  Mr Woods  to  be  the recipient of communications on his behalf.  The Act says that in such situations the contact  address  is  either  the postal  address  or  an  electronic  address.   Although Mr Woods had provided both, the postal address was used.

[17]     Returning then to  s 386A of the Act,  and  reading into  it  a definition  of registered post from elsewhere in the Act, the notice obligation is:

to send the notice to the physical address using a postal or courier service being a service that records delivery to the address.

Consistent with that, the Tribunal used a courier service where a signature of receipt was required.  It is just that on this occasion the person signing had no connection at all to the intended target.

[18]     The last provisions of the Act to note are ss 386A(4) and (6) which provide:

(4)       A notice or document served or sent by registered post is deemed to be received by the person to whom it is addressed, –

(a)      if the address is in New Zealand, 7 days after the date on which it was sent; and

(b)      if the address is outside New Zealand, 14 days after the date on which it was sent.

…

(6)       Subsection (4) applies unless the intended recipient proves that he or she did not receive the notice or document and the failure to receive it was not a result of fault on his or her part, and–

(a)      he or she is–

(i)       the holder of a residence class visa; or

(ii)      a person described in section 187(1)(a) to (c); or

(b)      the address to which the notice or document was sent is an address outside New Zealand.

[19]     To summarise the Act as it applies to the present facts, the obligation on the

Tribunal was to send a hard copy of the judgment, together with a written notice of

the result, to Mr Wood’s business.  This was to be done by registered post or courier, i.e. a method requiring the recipient to sign for it.  If this method was used, service is deemed to be effected after seven days of handing the documents to the courier.

[20]     Although interesting issues potentially arise as to whether the Act’s processes are complied with when an unknown person signs for the package, the only matter needing resolution here is whether actual service, however achieved, starts time running from that moment.   If timing is governed by the statutory process, this appeal is in time whether or not the Act was complied with.

[21]     The  processes  for  service  or  notification  appear  in  pt 11  of  the  Act, Miscellaneous provisions.  That part does not have its own purposes provision, and the Act’s general purposes do not particularly shed light on this narrow process issues.    Structurally the Act  draws  a distinction  between  obligations  to  serve  a document on the one hand, and on the other, obligations to supply or notify.  The same method is provided for each, except that where the obligation is to serve and the recipient is a lawyer or agent, a personal signature from the lawyer or agent accepting service is required.

[22]     The best point favouring the appellant’s case is the use of “must be sent”. That obviously suggests a mandatory aspect, but it is possible to link the mandatory aspect to the immediately following deeming provision – that method must be used if the deemed date is to apply.

[23]     In the end one must come back to the apparent purpose of the provisions.  At the general level that aim seems to be to prescribe a method that can be relied upon to achieve notice being given; at the more specific level it seems to be to provide a methodology that allows a deeming provision to take effect, so that time will run.  It is important to recall that the particular statutory method has no intrinsic value or significance.  It is not an end in itself but is purely functional.  Other methods could have been chosen, and indeed email suffices.  It seems difficult to infer there is any magic or intrinsic importance in the method.  Rather, the key issue is when service is either achieved or deemed to be achieved.

[24]     I accordingly conclude that where, as here, extrinsic evidence establishes when notice was actually given, and as here the form of the notice complies with the requirements  of  the Act,  time  runs  from  that  point.    It  follows  that  Mr Rao’s application for leave to appeal is out of time, and must be dismissed.

“Simon France J”

Solicitors:

Rowland Woods Ltd, Wellington

Crown Law, Wellington