FEDERAL COURT OF AUSTRALIA

SZKNX v Minister for Immigration and Citizenship [2008] FCAFC 176  

MIGRATION – time limit on application for review of a migration decision – meaning of “actual (as opposed to deemed) notification of the decision” – does delivery by mail and actual receipt and physical possession of the written statement of the decision by the applicant constitute actual notification? – does actual notification require personal service of the written statement of the decision?

Migration Act 1958 (Cth), ss 430 and 477

Migration Litigation Reform Act 2005 (Cth), Item 42 of Schedule 1

Minister for Immigration and Multicultural Affairs v SZKKC (2007) 159 FCR 565

WACB v The Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94

SZKNX v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

NSD 1115 OF 2007

SUNDBERG, EMMETT AND TRACEY JJ

21 OCTOBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1                     This appeal is brought from an order of the Federal Magistrates Court dismissing an application for Constitutional writ relief in respect of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal).  The Federal Magistrates Court considered that the application was incompetent by reason of its having been brought outside the time limit specified in s 477 of the Migration Act 1958 (Cth) (the Act). 

2                     The appellant is a citizen of Indonesia.  He arrived in Australia on 10 May 1997.  On 25 June 1997, he lodged an application for a protection visa under the Act.  A delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused the application.  On 26 February 1999, the Tribunal affirmed the decision of the delegate not to grant a protection visa to the appellant.

3                     The Tribunal’s decision of 26 February 1999 is a migration decision within the meaning of s 477 of the Act.  Section 477(1) relevantly provides that an application to the Federal Magistrates Court for a remedy in relation to a migration decision must be made to the Court within 28 days of the actual (as opposed to deemed) notification of the decision.  Under s 477(2) the Federal Magistrates Court may extend that 28 day period by up to 56 days if an application for such an order is made within 84 days of the actual (as opposed to deemed) notification of the decision.  However, s 477(3) prohibits the Federal Magistrates Court from making an order allowing, or which has the effect of allowing, an applicant to make an application for such a remedy outside that 28 day period, except as provided by s 477(2). 

4                     Item 42 of Schedule 1 to the Migration Litigation Reform Act 2005 (Cth) provides that, where an applicant has been notified of a decision of the Tribunal prior to 1 December 2005, the applicant is deemed to have been actually notified of the decision on 1 December 2005.  Accordingly, the time periods contemplated by s 477 begin to run from 1 December 2005.  Unless an applicant who has been notified prior to 1 December 2005 makes an application for a remedy within 84 days after 1 December 2005, the Federal Magistrates Court has no jurisdiction in respect of that application. 

5                     On 23 April 2007, the appellant commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the Tribunal’s decision.  The appellant applied for an order that the Minister show cause why the Tribunal’s decision should not be quashed and his application for review of the delegate’s decision by the Tribunal be determined according to law.  On 4 May 2007, the Minister filed a response contending that the Federal Magistrates Court lacked jurisdiction to hear the application on the ground that the proceeding was commenced out of time and the time during which an extension of time could be applied for had also expired.  The Federal Magistrates Court upheld the Minister’s contention and, on 28 May 2007, ordered that the application be dismissed as incompetent. 

6                     On 19 June 2007, the appellant applied for leave to appeal from the orders of the Federal Magistrates Court.  On 2 November 2007, a Judge of this Court ordered, by consent, that the application for leave to appeal be granted.  His Honour also ordered, by consent, that the orders of the Federal Magistrates Court of 28 May 2007 be set aside and that the matter be remitted to that Court for rehearing.  However, on the Minister’s application, his Honour subsequently set those orders aside and ordered that the Court’s jurisdiction in respect of the appeal, for which leave was then granted, be exercised by a Full Court.  The appeal has now proceeded on the basis of an amended notice of appeal filed on 18 July 2008. 

7                     The Federal Magistrates Court found that the Tribunal, having made its decision on 26 February 1999, sent a copy of its decision to the appellant on that day under cover of a letter of that date.  The letter was sent to the appellant by registered mail addressed to the appellant at the address shown in his application to the Tribunal as his home address.  The letter was signed by a deputy registrar of the Tribunal and relevantly said as follows:

The Tribunal has decided that you are not a refugee, which means you are not entitled to a Protection Visa. 

I enclose a copy of the Tribunal’s decision and reasons… 

8                     Enclosed with that letter was a copy of an 18 page document (the Tribunal’s Decision).  The first page of the Tribunal’s Decision was headed “Decision and Reasons for Decision”.  The first page contained particulars of the appellant, the Tribunal’s reference, the appellant’s country of reference, the name of the Tribunal member, the date of the decision and the place of the decision.  The first page also stated that the decision was as follows:

The Tribunal affirms the decision not to grant a protection visa. 

Pages 2 to 18 of the Tribunal’s Decision consisted of the reasons for that decision.  The letter of 26 February 1999 containing the Tribunal’s Decision was not returned unclaimed to the Tribunal. 

9                     At some time prior to 17 March 1999, the appellant instructed Adrian Joel & Co, solicitors, to act for him.  On 17 March 1999, Adrian Joel & Co wrote to the Ministerial Liaison Unit of the Minister.  By that letter, the solicitors said, inter alia, as follows:

Section 417 of the Migration Act affords the Minister with a discretion to substitute for a decision of the Refugee Review Tribunal a decision more favourable to the applicant if it is in the “public interest” to do so. 

Our client has been informed of the limited operation of s 417; nevertheless, he seeks an assessment based on broad humanitarian grounds which may permit him further lawful stay in Australia. 

The applicant is a citizen of Indonesia who arrived in Australia on 10 May 1997.  His application for a Protection Visa was lodged with the Department of Immigration and Multicultural Affairs on 25 June 1997 and refused on 28 February 1998.  An application for review was made with the Refugee Review Tribunal at its Sydney Registry on 27 March 1998.  The Tribunal conducted two hearings in this matter and on 26 February 1999 affirmed the primary decision to refuse [the appellant] the protection visa. 

[The appellant] was born in [Indonesia] of ethnic Indonesian parents.  He is a Christian.  What he has read about inter-religious tensions in Indonesia prevents him from wanting to live there.  His perception is that his religious beliefs will attract the disfavour of Muslims in the context where communal violence has become increasingly exacerbated by religious differences…  As the Tribunal commented, 49 persons have been killed in eastern Maluka whilst 59 have been seriously injured; extensive damage to both homes and churches and mosques serves to underlie the extent to which this violence has been underpinned by religious beliefs…  

In considering the question – whether there was a real chance that [the appellant] would suffer harm because of his religious beliefs – the Tribunal relied upon the island haven that is Bali… 

The letter then quoted an extract from the Tribunal’s Decision.  Adrian Joel & Co referred to the Tribunal’s Decision as the “Tribunal’s record”.  Their letter pointed out that the Tribunal’s Decision addressed the appellant’s religious activism both in Indonesia and Australia.  It also pointed out that reference was made in the Tribunal’s Decision to the appellant’s involvement and participation in the congregation of a church in Sydney.  The solicitor’s letter ended as follows:

We therefore implore the Minister to sympathetically revisit [the appellant’s] request for further stay in Australia based as it is on compelling grounds.  It is our submission that this is a deserving case. 

10                  It is patently clear that Adrian Joel & Co had available to them a copy of the Tribunal’s Decision which had been enclosed with the letter of 26 February 1999.  The circumstances in which the Tribunal’s Decision came to be available to the solicitors are not entirely clear.  In his oral evidence to the Federal Magistrates Court, the Appellant told the Court that he did not recall receiving a copy of the Tribunal’s Decision.  However, he recalled going to see Adrian Joel & Co in March 1999.  He also said that he recalled taking some documents with him to the solicitors.  When asked if he remembered what they were, he said that they were:

About the rejection by the RRT…  I gave them to the solicitor, I didn’t keep them. 

11                  He told the Court that, after he gave the documents to Adrian Joel & Co, he believed that they would do things to help him.  There is no suggestion that the appellant had any other document in March 1999 that could be characterised as relating to “rejection by the RRT”.  The only conclusion that can be drawn from the evidence summarised above is that the Tribunal’s letter of 26 February 1999, and its enclosure, consisting of the Tribunal’s Decision, of 18 pages, was received by the appellant by registered mail.  He took the letter and the document to Adrian Joel & Co and gave it to them. 

12                  The Federal Magistrates Court was satisfied that the evidence allowed it to find that the appellant “was actually notified” of the decision of the Tribunal at some time after 26 February 1999 and prior to 17 March 1999.  His Honour concluded that it must follow that, as the appellant was notified during that period, he was notified prior to 1 December 2005. 

13                  In the light of that conclusion, his Honour concluded that for the appellant’s application to have been filed in time it would have to have been filed no later than 23 February 2006.  It was not in fact filed until 23 April 2007, which is well outside the time provided by s 477 of the Act.  Accordingly, his Honour concluded that the Federal Magistrates Court had no jurisdiction to deal with the application. 

14                  The appellant contends that, in the light of the decision of the Full Court in Minister for Immigration and Multicultural Affairs v SZKKC (2007) 159 FCR 565, which was delivered after the orders of the Federal Magistrates Court in the present case, the decision of the Federal Magistrates Court was erroneous.  The decision of the Full Court in SZKKC was expressed to be based on the decision of the High Court in WACB v The Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94. 

15                  The Minister, however, contends that both of those decisions can be distinguished because they relate to a different regime for giving to an applicant details of a decision of the Tribunal.  The Minister also contends that, whether or not the difference in the regimes for giving details is relevant, both cases are distinguishable from the present case.  In each of those cases, while the relevant applicant had been notified of the fact and effect of the Tribunal’s decision substantially before the relevant period, the relevant applicant did not physically receive a copy of the Tribunal’s decision and reasons until a time that was within the relevant period prior to the commencement of that applicant’s  proceeding. 

16                  As at 26 February 1999, s  430 of the Act was headed as follows:

“Refugee Review Tribunal to record its decisions etc and to notify parties”. 

Section 430(1) relevantly provided that, where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)        sets out the decision of the Tribunal on the review; and

(b)        sets out the reasons for the decision; and

(c)        sets out the findings on any material questions of fact; and

(d)        refers to the evidence or any other material on which the findings of fact were based.

Section 430(2) required the Tribunal to give the applicant a copy of the statement prepared under s 430(1) within 14 days after the decision concerned was made.  Regulation 4.40(1) made under the Act relevantly provided that a statement to be given to an applicant in relation to a decision of the Tribunal was to be taken to be duly given if the statement was given by posting it to the residential address provided by the applicant in his application for review.  The appellant accepts that there was no failure on the part of the Tribunal to comply with its obligations under s 430 as in force as at 26 February 1999. 

17                  However, the appellant contends that, when s 477 speaks of actual notification of a decision of the Tribunal, it refers to notification as contemplated by the Act.  If the appellant had not actually received the Tribunal’s letter of 26 February 1999 with its enclosure, it could not be said that there had been actual notification of the Tribunal’s decision, even if he had been informed of the fact and the effect of the decision because merely being informed of the fact or effect of the decision does not involve being given the decision within the meaning of s 430(2). 

18                  In WACB, the relevant applicant was in immigration detention.  A facsimile transmission was sent to the detention centre from the registry of the Tribunal.  The facsimile comprised 18 pages.  The applicant was told by the manager of the detention centre, speaking through an interpreter, that the Tribunal had refused his application and that he had 28 days within which to apply for judicial review by the Federal Court.  The documents were handed to a counsellor employed by the company managing the detention centre.  The counsellor took the applicant into another room and told him that the Tribunal had refused his application.  The documents handed to the counsellor remained with her until requested by the applicant some weeks later. 

19                  The High Court concluded that the Tribunal’s statement was not given to the applicant until he received it physically.  The fact that it was in the possession of the counsellor and that she told him did not constitute notification of the decision.  The applicant commenced a proceeding within the relevant time after physically receiving the documents.  In the context of the provisions of s 430 of the Act that require the Tribunal to give the applicant a copy of a written statement, physical delivery of the statement is necessary, not some act of constructive delivery of possession.  It will not be enough to communicate to the applicant orally that the statement has arrived or to communicate the gist of the statement or even to read the statement to the applicant.  What is required is that the written statement be physically given to the applicant.  Only when that has occurred can it be said that time begins to run for the purposes of s 477 (see WACB at [37]).

20                  In SZKKC, the applicant had engaged a migration agent who was authorised to act on her behalf and to whom the Tribunal sent a copy of its decision record.  The applicant was told of the decision but not physically given a copy of the written statement prepared in accordance with s 430(1).  She received a copy of the written statement for the first time in March 2007, when she was taken into detention.  She commenced a proceeding in the Federal Magistrates Court on 22 March 2007. 

21                  In SZJMA, which was heard and decided at the same time as SZKKC, the applicant had also appointed a migration agent to act on her behalf.  The Tribunal’s decision was sent to the migration agent but the applicant was not told of the decision at that time.  She became aware of the decision when taken into detention on 11 August 2006.  However, she did not receive a copy of the written statement prepared in accordance with s 430(1) until 4 October 2006.  She commenced a proceeding in the Federal Magistrates Court on 5 October 2006. 

22                  In his reasons in SZKKC and SZJMA, Gyles J considered that WACD stood for the proposition that actual notification to an applicant of a decision requires physical delivery of a written statement of the decision to the applicant and that receipt of the decision statement by the applicant by other means, including coming into physical possession of it, would not accord with that requirement (SZKKC at [1]).  Buchanan J considered that the decision in WACD compelled the conclusion that the sole method of actual, as opposed to deemed, notification of a written statement, required by s 430(1) to be prepared by the Tribunal, is delivery by hand (SZKKC at [37]). 

23                  It may be that the results reached in relation to SZKKC and SZJMA are indeed compelled by the reasoning of the High Court in WACD.  That is to say, in all three of those cases, the relevant applicant had commenced a proceeding within the specified time after coming into physical possession of the decision and reasons of the Tribunal.  However, that is not this case.

24                  In the present proceeding, the Federal Magistrates Court expressed its factual conclusion in terms of the applicant’s having been “actually notified of the decision” prior to 17 March 1999.  That was a finding in terms of s 477(1) and 477(2), those provisions refer to “actual (as opposed to deemed) notification of the decision”.  However, it is tolerably clear that his Honour found that the appellant gave to Adrian Joel & Co the Tribunal’s letter of 26 February 1999 and the Tribunal’s Decision which were sent to him by registered mail on 26 February 1999.  In any event, having regard to the terms of Adrian Joel & Co’s letter to the Minister of 17 March 1999, the conclusion is inescapable that Adrian Joel & Co had the Tribunal’s Decision and that it had been given that document by the appellant.  It follows that the appellant must have had the document in his physical possession prior to 17 March 1999.  Accordingly, there should be a finding that the Tribunal gave the Tribunal’s Decision to the appellant some time before 17 March 1999.

25                  Irrespective of how the Tribunal has complied with its obligation under s 430(2), if an applicant has physically received a copy of the Tribunal’s decision and reasons, as has happened in the present case, there has been actual notification of the decision for the purposes of s 477.  Accordingly, the appellant received actual notification of the Tribunal’s decision of 26 February 1999 prior to 17 March 1999.  It follows that the Federal Magistrates Court did not err in concluding that it did not have jurisdiction to entertain the appellant’s application for Constitutional writ relief in relation to the Tribunal’s decision of 26 February 1999.  The appeal should be dismissed with costs. 

Associate:

Dated:         21 October 2008