CATCHWORDS
ADMINISTRATIVE LAW - MIGRATION - application to Refugee Review Tribunal for review lodged out of time - time for lodging application determined by notification of decision of Minister for Immigration and Ethnic Affairs (the “Minister”) - whether “notification” same as “notice” - whether “notification” requires decision to come to knowledge of recipient - whether notice should have been in Vietnamese - “notification” or “notice” is not synonymous with knowledge - whether notice only becomes effective upon translation - whether Minister estopped from asserting efficacy of notice in English - service of application for review by post - whether service should be deemed to be effected - whether regulation providing for lodging application ultra vires - whether “lodging” same as “giving”
DISCRIMINATION - RACIAL DISCRIMINATION - equality before the law - notice in English - whether appellant less able to enjoy right to be notified - whether purpose or effect of notification provision amounts to racial discrimination - whether right to receive notification in applicant’s language - use of English reasonable and appropriate
Acts Interpretation Act 1901, s 29, s 46
Migration Act 1958, s 166BA
Migration (1993) Regulations, reg. 2A.11, 2A.12
Migration (Review) (1993) Regulations, reg. 43E
Racial Discrimination Act 1975, s 10
Gerhardy v Brown (1985) 159 CLR 70, applied
Mabo v The State of Queensland (1988) 83 ALR 14, cited
Melkman v Federal Commissioner of Taxation (1988) 81 ALR 361, cited
Australian Medical Council v Wilson (1996) 137 ALR 653, cited
Ebber v Human Rights and Equal Opportunities Commission (1995) 129 ALR 455, cited
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, cited
Griggs v Duke Power Co. (1971) 401 US 424, cited
Waters v Public Transport Corporation (1991) 173 CLR 349, cited
R v Wilson; Ex parte Kisch (1934) 52 CLR 234, distinguished
Goodyear Tyre and Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd [1958] 1 WLR 857, cited
Cresta Holdings Ltd v Karlin [1959] 1 WLR 1055, cited
Forward v West Sussex County Council [1995] 1 WLR 1469, distinguished
Legione v Hateley (1983) 152 CLR 406, applied
National Mutual Life Association v Windsor (1991) 100 ALR 585, cited
CUONG VAN NGUYEN - v - MR M W GERKENS CONSTITUTING THE REFUGEE REVIEW TRIBUNAL
No VG 660 of 1996
Tamberlin, Sundberg and Marshall JJ
Melbourne
24 April 1997
IN THE FULL COURT OF )
THE FEDERAL COURT OF AUSTRALIA ) No. VG 660 of 1996
VICTORIAN DISTRICT REGISTRY )
GENERAL DIVISION )
ON APPEAL FROM A DECISION OF A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: CUONG VAN NGUYEN
Appellant
AND: M W GERKENS,
REFUGEE REVIEW TRIBUNAL
Respondent
CORAM: TAMBERLIN, SUNDBERG & MARSHALL JJ
PLACE: MELBOURNE
DATED: 24 APRIL 1997
MINUTE OF ORDERS
THE COURT ORDERS THAT:
1. The appeal be dismissed with costs.
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FULL COURT OF )
THE FEDERAL COURT OF AUSTRALIA )
VICTORIAN DISTRICT REGISTRY ) No. VG 660 of 1997
GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA
BETWEEN: CUONG VAN NGUYEN
Appellant
AND: M W GERKENS,
REFUGEE REVIEW TRIBUNAL
Respondent
CORAM: TAMBERLIN, SUNDBERG & MARSHALL JJ
PLACE: MELBOURNE
DATED: 24 APRIL 1997
REASONS FOR JUDGMENT
TAMBERLIN J:
This appeal is from a judgment of Ryan J dismissing an application for review of a decision of the respondent ("the RRT").
The decision of the RRT was that it did not have power to entertain the appellant's review application because the application was made out of time and there was no power to extend the time within which to lodge the application.
At the outset it should be noted that a number of the arguments raised on appeal to the Full Court were not advanced before Ryan J. However, no point was taken and therefore the Court proceeded to hear the further arguments.
Factual background
The appellant was born in Vietnam on 4 March 1958. He left Vietnam and arrived in Australia on 12 April 1992 on a temporary entry permit which was valid until 15 October 1992. On 18 September 1992 he lodged an application with the Department of Immigration and Ethnic Affairs ("the Department") for refugee status and on 5 October 1992 lodged an application for a Domestic Protection Temporary Entry Permit. The documents supporting his applications were written in Vietnamese and accompanied by an English translation.
After the appellant had been interviewed by officers of the Department a letter was written to him in these terms:
"I am writing to you about your application for refugee status and your application for:
. a Domestic Protection Temporary Entry Permit.
The reasons for the refugee status refusal are given in the attached decision record. The other applications have also been refused because of the refugee status refusal.
You are entitled to apply to the Refugee Review Tribunal (RRT) for review of the decision to refuse refugee status and any associated visa or entry permit(s). Details of the Tribunal's procedures may be obtained directly from the Tribunal.
Enclosed is a brochure about the RRT. This tells you how to apply for review.
If you decide to apply for review your application must be received by the RRT within 28 days of the date of receiving this letter (you are deemed to have received this letter 5 working days after the date shown on it).
...."
The above letter was written on an official letterhead which had the Australian coat of arms on the top left-hand corner and the name of the Department and its address on the printed heading of the letter. There was also a reference to a file.
On 28 September 1993 the appellant consulted a solicitor who advised him of his right to apply to the RRT and received instructions to make the application. The application was prepared and posted to the RRT by ordinary post at some time after 6.00 pm on 29 September 1993. However, it was not noted as having been received by the RRT until 18 October 1993.
By letter, dated 11 November 1993, the RRT advised the appellant that his application, having been lodged on 18 October 1993, was outside the twenty-eight day period provided for by the regulations and therefore the application could not be accepted.
The RRT's letter stated:
"An application for review by the Tribunal must be lodged within twenty-eight (28) calendar days of the notification to you of the original decision. Where you were notified by post, the regulations allow a further five (5) working days for receipt by you of the decision. The Tribunal has no discretion to extend these periods.
Allowing five (5) working days for you to have received the original decision, the twenty-eight (28) day period to lodge an application for review by the Tribunal expired on 14 October 1993. However, you did not lodge the application until 18 October 1993."
On 1 July 1994 the RRT conducted a hearing to determine whether it had jurisdiction to entertain the application for review. On 18 July 1994 the RRT published a decision to the effect that it was precluded by the lapse of time before it received the application from proceeding to hear and determine it on the merits. The RRT noted that:
"One possibility is that the documents were delayed in the post and did not arrive at the Tribunal until 18 October 1994. If so, my observations above do not assist the applicant's case. On the other hand, there is the possibility that the documents arrived at the Tribunal in the ordinary course of post and were temporarily mislaid in the Tribunal registry for a period in excess of two weeks. Resolution of the question when the documents were received by the Tribunal depends on the relative degrees of probability of the two possibilities."
The RRT made a finding that the application was "given" to it on 18 October 1993 and therefore did not comply with the time requirements. The RRT in this respect relied on evidence of the RRT mail system and an entry which appeared on its face to have been properly made in the normal course of business.
Legislation
Migration Act 1958, Section 166BA
S.166BA (1) An application for review of an RRT-reviewable decision must:
...
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision;
...."
Migration (1993) Regulations, as amended - Notice of decisions
"2A.11 (1) If the Minister decides to refuse a refugee status application or an application for review, the Minister must, in accordance with subregulation (2), give notice of the decision to the applicant.
(2) Notice must be given by:
(a) posting the notice to the person at the person's latest address for service provided in the refugee status application or application for review; or
(b) posting the notice to the person at the person's residential address provided in the application; or
(c) giving the notice:
(i) to the person personally; or
(ii)to another person duly authorised to receive documents on behalf of the person; or
(d) leaving the notice at the last known place of business or residence of the person with another person who is apparently:
(i) employed at, or an occupant of, that place; and
(ii)not less than 16 years of age.
2A.12 If notice is given by post to a person in accordance with paragraph 2A.11(2) (a) or (b), service is taken to have been effected if the person is in Australia - at the end of 5 working days after the day of posting." (Emphasis added)
Migration (Review) (1993) Regulations - Applications for review
"43E. (1) For the purpose of paragraph 166BA (1)(b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal.
(2) A period mentioned in subregulation (1) commences on the date on which the applicant is notified of the decision to which the application relates, and ends at the end of:
(a) ...
(b) in any other case - 28 days
(3) Subject to this regulation, an application must be lodged at a registry of the Tribunal:
(a) by posting the application to that registry; or
(b) by leaving it at the registry in a box designated for the lodgment of such applications; or
(c) by leaving it with a person employed at that registry and authorised to receive such documents; or
(d) by means of electronic facsimile transmission to that registry.
(4) An application posted in accordance with paragraph (3)(a) or transmitted in accordance with paragraph (3)(d) is not to be taken to have been lodged until it is received at a registry of the Tribunal." (Emphasis added)
It is not in dispute that a notice of the primary decision of the Department was posted to the appellant on 9 September 1993 as evidenced by an Australia Post certified mail posting receipt.
The effect of regulations 2A.11 and 2A.12, cited above, is that service of the notice, having been also given by post, was deemed to have been effected five working days after posting ie. on 16 September 1993.
Racial Discrimination Act s 10
Section 10 of the Racial Discrimination Act 1975 provides:
"10.(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy the right to the same extent as persons of that other race, colour or national or ethnic origin". (Emphasis added)
The submission for the appellant is that because of his race and his consequential inability to read English he was less able to enjoy the right to be notified of the Department's decision than a person of another race who could understand English. It is submitted that language is in a practical sense closely related to race or ethnic origin. This submission was not made to Ryan J.
The circumstances relied on for the appellant are that: (i) the appellant is a person of the Vietnamese race; (ii) the RRT was aware of this and knew that he could not understand the English language. It is said that this was apparent to the RRT from forms completed by the appellant and from the hearing before the RRT where the appellant required the services of an interpreter.
Mr Bell, for the respondent, submits that even if the right of review is a relevant right for the purposes of s 10, there is no lesser enjoyment of the right because the notice is not in the Vietnamese language. The appellant received a notice in the same language as all other persons who are entitled to receive a notice under the Migration Act 1958 ("the Act"). He points out that in some cases, for example, where an illiterate person, who speaks but cannot read English, it will be necessary to have a notice explained by a literate person. That does not mean, however, that the person's enjoyment of the right to notice is diminished. Such a person might reasonably be expected to be aware of the inability and to take steps to seek appropriate advice. Many people will not understand the legal language or terminology which may appear in notifications they receive although they can read the words used in the notice.
The High Court considered the operation of s 10(1) in Gerhardy v Brown (1985) 159 CLR 70. That case concerned Pitjantjatjara Land Rights Act (1981)(SA) which vested the title to a large tract of land in the north-west of South Australia to a body corporate comprising a group of Aboriginal people. The Court considered that the legislation would have been inconsistent with s 10, if it were not a "special measure", because it restricted the right to access and this was a "right" within s 10. Because the claim included an area about one tenth of the State the Court considered it was a right in relation to a field of public life. The legislation under consideration operated in relation to membership of a particular race. The Court held, however, that it was a special measure taken for the sole purpose of securing adequate advancement of the Aboriginal racial group in question and so was excluded from s 10.
All members of the Court considered that s 10 should receive a liberal interpretation and should not be read in a technical narrow way.
Gibbs CJ (at 86) reached the conclusion that the word "right" in s 10(1) must refer only to a human "right" in the political, economic, social, cultural or other field of public life. He saw the question to be whether the right conferred by the legislation was a right in some field of public life. He concluded that it was.
Mason J (at 94) observed that s 10 was not aimed at striking down a law which is discriminatory or is inconsistent with the Constitution. Rather, it was intended to result in equality before the law by providing that persons of the race discriminated against by a law shall enjoy the same rights under that law as other persons. He observed that s 10 endeavoured to guarantee the right of everyone without distinction as to race, colour or national or ethnic origin to equality before the law in the enjoyment of the relevant rights. He concluded that because the lands in respect of which access was limited constituted one tenth of the area of the State of South Australia, the vesting of title to the lands and the restrictions on access amounted to an impairment of a basic human right, namely the right to freedom of movement.
For the purposes of this case I assume that the right to notice of a decision could be described as a right in some "field of public life" although these words do not self-evidently extend to a right to notification of a decision in a particular language.
As Deane J in Mabo v The State of Queensland (1988) 83 ALR 14 at 42 observed:
"The word 'right' is used in s 10 in the same broad sense in which it is used in the International Convention, that is to say, as a moral entitlement to be treated in accordance with standards dictated by the fundamental notions of human dignity and essential equality which underlie the international recognition of human rights."
I entertain considerable doubt whether the right relied on by the appellant in this case comes within this description but it is not necessary to express a concluded view on that question.
The decision in Gerhardy has been applied and followed on many occasions.
In Melkman v Federal Commissioner of Taxation (1988) 81 ALR 361, the Full Federal Court decided that s 23(kc) of the Income Tax Assessment Act 1936 did not attract the operation of s 10(1) of the Racial Discrimination Act. That provision exempted from income tax compensation payments made by the State of Germany to victims of Nazi persecution.
Mrs Melkman was a Jewish widow who sought to have income paid to her late husband by the Netherlands, as compensation under Dutch legislation for the victims of persecution, treated as exempt income. Her case was that s 10 operated with respect to s 23(kc) to confer on her an equal entitlement to an exemption to that conferred in relation to compensation emanating from the German States. The Court followed Gerhardy, stating at 365:
"Consistently with what was said by Mason J in Gerhardy v Brown ... it is necessary for the appellant to establish both that the prejudice of which complaint is made arises by reason of statutory provisions whose purpose or effect is to create racial discrimination, and also that that prejudice amounts to an exclusion from or impairment of a human right or fundamental freedom, or a right of a kind referred to in Art 5 of the Convention".
The Court considered that neither the purpose nor the effect of s 23(kc) was to discriminate between taxpayers in receipt of income on grounds going to race, colour, nationality or ethnicity. Further, the operation of the law did not result in an exclusion from enjoyment of human rights or fundamental freedoms. The Court considered that the provision operated uniformly, regardless of race, colour, or national or ethnic origin.
The requirement that certain medical accreditation tests be satisfied before a doctor from a non-certified medical school was entitled to practice on an unrestricted basis was held not to amount to discrimination in Australian Medical Council v Wilson (1996) 137 ALR 653. The appellant had graduated from an Indian University. The Medical Council, due to an over-supply of doctors in Australia, resolved to reduce the intake of overseas-trained doctors. The Full Federal Court held that there was no Act which produced discrimination on the specified grounds. The Court expressed doubt whether a right to practise medicine on an unrestricted basis came within the description of "a human right or fundamental freedom".
Drummond J in Ebber v Human Rights and Equal Opportunities Commission (1995) 129 ALR 455 had to consider the requirements of the Queensland Architects Acts of 1962 and 1985, by which full recognition was given to diplomas from overseas institutions only if they involved a minimum of 8 semesters of training. The applicants were German nationals who were qualified architects under German law, but they had only undertaken courses of 6 semesters. His Honour held that the requirement of the Queensland law that before a person can practise as an architect specified standards had to be met was one which fell on all persons equally and did not amount to direct discrimination.
Of course, discrimination may be indirect. Indirect discriminatory practices were described by Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 255 as:
"practices which are fair in form and intention but discriminatory in impact and outcome".
The language of s 10 does not exclude indirect discrimination. The section simply says that "by reason of ... a law" a person of a particular race is less able to enjoy a right. Nor does the decision of Mason J in Gerhardy (supra) restrict the application of s 10 to direct discrimination. His Honour there focuses on the "purpose or effect" of the law. Both the statute and Mason J's approach indicate that it is the effect of the operation of the law that is crucial. This is consistent with s 10 covering indirect discrimination which is concerned with practices that are "discriminatory in impact and outcome".
The concept of indirect discrimination was
articulated by the United States Supreme Court in Griggs v Duke Power Co. (1971) 401 US 424. In that case the Court
held that a discrimination provision prohibited both direct and indirect
discrimination. An employment selection test which had a disparate impact on
persons of different racial backgrounds was held to be discriminatory, even
though on its face the test was racially neutral. The Court held that the
proscribed standards were not significantly related to job performance and that
they
operated to disqualify black persons at a substantially higher rate.
The indirect discrimination provision in the Racial Discrimination Act is found in s 9(1A). For a practice to amount to racial discrimination it must be "not reasonable having regard to the circumstances of the case". The availability of alternative, non-discriminatory methods is one of the factors relevant to determining whether a practice is reasonable in the circumstances of the case; see Waters v Public Transport Corporation (1991) 173 CLR 349, per Dawson and Toohey JJ at 395. Other relevant factors will vary from case to case.
In principle s 10 should be given a beneficial interpretation and is, in my view, capable of applying to indirect discrimination. It would therefore not be sufficient to dismiss an application under s 10 by holding that a particular law, on its face, applies equally to all individuals if in fact there is discrimination by reason of the operation of the law.
The right to notification of a decision under s 166BA is quite different to the rights under consideration in the Gerhardy case. In that case, the legislation was based on racial considerations, whereas in the present case the Act makes no reference, direct or indirect, to race, ethnicity, colour or nationality.
In the present case, the right to "receive" notice of a decision is not lessened by the fact that the notice is sent in the de facto official language of Australia, namely English. The use of the official language of Australia in official correspondence cannot be said to be discriminatory in form or in effect any more than legislation and judicial decisions which are printed in English, could be said to be discriminatory. The use of English in the present circumstances is both reasonable and appropriate. It would be impractical and inefficient to notify all applicants of the decision in their mother tongue. By the letterhead and the form of the letter, a recipient in the situation of the appellant, upon receipt of the notice of decision, would have been reasonably alerted to the fact that it was an official document which called for translation or the seeking of further information.
The fact that notice is given by a letter written in English does not mean that either the right, or the enjoyment of the right, to receive notice is lessened. No doubt a number of persons in the Australian community may not fully understand the importance and ramifications of notices of, or reasons for, decisions by administrative tribunals. This may arise from physical infirmity such as impaired sight, a stroke, or from illiteracy, or a general lack of education, or simply an ability to concentrate. This does not mean that where such material is furnished in the English language there has been any form of discrimination.
This is not a case where the Department has selected an inappropriate or esoteric language as the means of conveying its decision. Cf. R v Wilson; Ex parte Kisch (1934) 52 CLR 234 where an immigration law required that a dictation test be administered in relation to a passage of fifty words in a European language as directed by an immigration officer. Mr Kisch was a Czechoslovakian national and an accomplished linguist but he was considered a dangerous political radical. He was given a dictation test in Scottish Gaelic. The High Court held that Scottish Gaelic was not a European language because it was not a standard form of speech recognised as an ordinary means of communication among the inhabitants of a European community, (see 52 CLR at 241). That case, of course, did not concern provisions similar to the Racial Discrimination Act, but it serves to illustrate the way in which language can be used to achieve an ulterior purpose under a law which is non-discriminatory on its face.
Even if one assumes that framing the notice in English operated to somehow lessen the enjoyment of the right to receive notice, it cannot be said that this result flowed from the fact that the notice was in the English language. The consequence really flowed from the circumstance that the appellant is a person whose language is Vietnamese and that he did not understand English. Any disadvantage arises from lack of education in the English language and not as the result of the terms or effect of the Act.
I reject the appellant's submission on the Racial Discrimination Act
"Notification" - not the same as "notice"
The appellant submits that there is an important distinction between "notification" of the decision referred to in s 166BA(1)(b) of the Act and the giving of "notice" as required by reg 43E of the Regulations.
This distinction is said to be that "notification" of the decision requires not only that notice of it be given or received (either actually or by deeming) but that it must also convey to the recipient an understanding of the statements in the notice. That is to say, in the present case, that it is not sufficient for the appellant to have been given a notice in the English language but that he must understand the language used. The consequence in the present case is that he must be given a notice in Vietnamese. Therefore, the effect of s 10, was that time should not begin to run for lodgment of the application until the appellant was able to understood the contents of the notice. It is said that the appropriate date from which time should run was either when he consulted his solicitor, or when the application for review of the decision was posted. On this basis the application must be treated as having been made within time (because the RRT received it on 18 October 1993) and the RRT should have then proceeded to determine the application on its merits.
I do not accept this reasoning.
In dealing with the substance of this question, Ryan J considered that the regulation required only the giving of notice of the decision and did not require the Minister to affirmatively establish that the decision came to the "knowledge" of the applicant. He considered that the scheme of the regulations was that notice may be given, notwithstanding that the decision did not in fact come to the knowledge of the applicant. He accepted the proposition that notice means something less than full knowledge: Goodyear Tyre and Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd [1958] 1 WLR 857 at 863 and Cresta Holdings Ltd v Karlin [1959] 1 WLR 1055 at 1057. In the latter case, Hodgson LJ emphasised that"notice" is not synonymous with "knowledge".
On this issue his Honour concluded:
"In my view, the general effect of statutory provisions like Reg. 2A.11 is to require only that the notice be given in English in a sufficiently formal or official way to alert an ordinarily astute recipient who does not understand that language to its potential significance and to the need to have it translated or to obtain advice about it."
His Honour regarded the notice sent on 9 September 1993 as satisfying this requirement. I agree.
According to the Shorter Oxford English Dictionary, Volume 2 at 1417, 3rd edn., one of the primary meanings of "notify" is:
"... to give notice to, to inform"
Other primary meanings include "to make known", "publish," "proclaim" or "announce", "to indicate" or "denote".
In support of the proposition that "notification", and not mere delivery of a document, is vital for effective service, reference was made by the appellant to the decision of the English Court of Appeal in Forward v West Sussex County Council [1995] 1 WLR 1469 at 1477 where Sir Thomas Bingham MR, delivering the decision of the Court said:
"In our opinion Order 10, rule 1 is quite clear. It would be surprising if the alternatives to personal service treated as irrelevant what personal service would guarantee, that the defendant had notice of the proceedings. We are satisfied this is not the case. The alternatives to personal service are allowed because they found a good working presumption ... that they will bring the proceedings to the notice of the defendant."
That was a different case to the present and it turned on the effect of the particular rules of court under consideration. His Lordship pointed out that:
"Where
the Court is required to construe a detailed statutory code it is in our view
dangerous to seek to apply statements made
with reference to different statutory codes". (1477)
This decision does not advance the appellant's case.
In my view, there is no difference for present purposes, between notification of a decision and the "giving of notice of a decision". In particular, it is not an appropriate reading of the expression "notification of the decision" in s 166BA to treat it as requiring that the contents of the notice must be in a language understood by the recipient. The latter interpretation reads too much into the reference to "notification".
The Court was referred to some United States decisions which indicated that notification was not synonymous with "notice" and that "notification" can be identified in some cases with the act of notifying and that this required actual notification. However, these decisions are of no real assistance. What amounts to "notice" in any particular case must depend on the legislative framework in which the requirement is found.
The expression "notification" in s 166BA therefore, in my opinion, does not extend to impose an obligation on a decision-maker to ensure that the notice is translated into the language of the recipient.
Escrow
A further submission was that the notice sent in this case was, at best, to be regarded as delivered in "escrow" to become effective upon translation. There is no suggestion of any such contingency in the legislation nor any mention of translation. Nor is there anything in the regulations which would support a suggestion that there is any obligation to ensure, on the part of the decision-maker, an understanding of the material in the mind of the recipient.
Acts Interpretation Act 1901 s 29
Section 29 of the Acts Interpretation Act 1901 provides as follows:
"29(1) Where an Act authorises or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post. (Emphasis added)
This provision also applies to regulations which authorise service by post; Acts Interpretation Act s 46(1)(a), and therefore covers reg 43E(3).
In the present case, the Act itself does not authorise or require the application to be served by post. This is provided for by reg 43E which is specifically enacted for the purposes of par 166BA(1)(b) of the Act. In subregulation (2) the regulation prescribes the period within which the application for review must be given to the RRT. Subregulation (3) is the provision which enables an application to be "lodged" at the registry of the RRT by posting.
The appellant submits that the Court must apply s 29 in determining the date on which the respondent received the application for review in the instant case. This would mean, according to the appellant, that the application must be deemed to have been received within the twenty-eight day period.
The difficulty with this submission is that the presumption does not apply where the contrary is proved by establishing the time at which the letter was in fact delivered. In the present case, the RRT has made a finding that the application was not received until 18 October 1996 and that finding was reasonably open to it on the evidence as to the normal practice of the Registry and the date stamp.
Accordingly, there is no substance in this submission.
Ultra-vires
It was also submitted that subregulation 43E(3) is beyond power because it refers to the "lodging" of an application rather than to "giving" an application. It will be recalled that s 166BA of the Act refers to a requirement that an application for review must be "given". Because subregulation 43E(3) refers to "lodgment" it is said that it conflicts with s 166BA.
In aid of this submission the appellant invokes the regulation making power contained in s 504(1)(e) of the Act, which refers to:
"(e) making provision for and in relation to:
(i) the giving of documents to;
(ii) the lodging of documents with; or
(iii) the service of documents on;
the Minister, the Secretary or any other person or body, for the purposes of this Act."
From this wording it is suggested that there is a distinction drawn between the three acts of "giving", "lodging" and "service". Therefore because s 166BA requires that an application must be "given" then it is beyond power to make regulations by reference to "lodgement". Accordingly, it is said that subregulation 43E(3) has no application.
In my view, there is no substance in this argument. There is no dichotomy to be drawn between the three concepts. Documents can be lodged by "giving" or "serving". They can be served by "lodging" or "giving" and they can be given by "lodging" or "serving". To a large extent the terms overlap and are interchangeable.
The effect of reference to an application being "lodged" at a Registry of the RRT is simply a convenient way of referring to the "giving" of an application to the RRT. The distinction contended for is purely semantic and in my view without substance.
The difference in language arises from the fact that when one is speaking of making or giving an application to a body such as a Tribunal, the term "lodgment" may be considered more appropriate as a matter of expression.
Conclusion
In this matter the appeal should be dismissed with costs.
I certify that this and
the preceding twenty-four (24)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 24 April 1997
IN THE FULL COURT OF )
FEDERAL COURT OF AUSTRALIA )
VICTORIAN DISTRICT REGISTRY ) No VG 660 of 1996
GENERAL DIVISION )
BETWEEN: CUONG VAN NGUYEN
Appellant
AND: M W GERKENS, REFUGEE REVIEW TRIBUNAL
Respondent
COURT: Tamberlin, Sundberg and Marshall JJ
DATE: 24 April 1997
PLACE: Melbourne
REASONS FOR JUDGMENT
SUNDBERG J:
The facts
The appellant, a Vietnamese citizen, arrived in
Australia on 12 April 1992 and was granted a temporary entry permit valid until
15 October 1992. On 18 September 1992 he
lodged with the Department of Immigration and Ethnic Affairs an application for
refugee status, and on 5 October 1992 an application for a Domestic Protection
Temporary Entry Permit. The documents
supporting his application were written in Vietnamese and were accompanied by
an English translation. After an
interview with officers of the Department the appellant was sent a letter of 9
September 1993 stating that his applications were unsuccessful. The letter noted that he could apply to the
Refugee Review Tribunal for review of the decision, that any application must
be received by the Tribunal within twenty-eight days of the date of
receiving the Department's letter, and that he would be deemed to have received
the letter five working days after the date shown on it.
On 28 September 1993 the appellant consulted a solicitor who advised him of his right to apply to the Tribunal. The appellant gave instructions for an application to be made. The application was prepared and posted to the Tribunal by ordinary post on 29 September at some time after 6 pm. However it was not noted as having been received by the Tribunal until 18 October when the Tribunal's date stamp was affixed to it and its receipt recorded in a diary maintained by the Tribunal. By letter dated 11 November the Tribunal advised the appellant that his application, having been lodged on 18 October, was out of time, and that as a result the application could not be accepted.
On 1 July 1994 the Tribunal, constituted by Mr M W Gerkens, conducted a hearing to determine whether it had jurisdiction to entertain the application for review. On 18 July the Tribunal decided that it had no such power. It examined the evidence surrounding the posting of the application and its stamping in the Tribunal's registry, and concluded on the balance of probabilities that the application was "given" to the Tribunal on 18 October 1993, and therefore did not comply with the time requirement in s166BA(1)(b) of the Migration Act 1958. The appellant's application to review the Tribunal's decision was dismissed by Ryan J. The appeal is from that dismissal.
Legislation
Section 166BA(1)(b) of the Migration Act provided, so far as is relevant, that an application for review by the Tribunal must "be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision ...".
Regulation 43E(1) and (2) of the Migration (Review) (1993) Regulations prescribed twenty-eight days from the date on which an applicant was notified of the relevant decision as the period within an application must be given to the Tribunal. Sub-regulations (3) and (4) were as follows:
(3) Subject to this regulation, an application must be lodged at a registry of the Tribunal:
(a) by posting the application to that registry; or
(b) by leaving it at the registry in a box designated for the lodgment of such applications; or
(c) by leaving it with a person employed at that registry and authorised to receive such documents; or
(d) by means of electronic facsimile transmission to that registry.
(4) An application posted in accordance with paragraph (3)(a) or transmitted in accordance with paragraph (3)(d) is not to be taken to have been lodged until it is received at a registry of the Tribunal.
Regulations 2A.11 and 2A.12 were as follows:
2A.11 (1) If the Minister decides to refuse a refugee status application or an application for review, the Minister must, in accordance with subregulation (2), give notice of the decision to the applicant.
(2) Notice must be given by:
(a) posting the notice to the person at the person's latest address for service provided in the refugee status application or application for review; or
(b) posting the notice to the person at the person's residential address provided in the application; or
(c) giving the notice:
(i) to the person personally; or
(ii) to another person duly authorised to receive documents on behalf of the person; or
(d) leaving the notice at the last known place of business or residence of the person with another person who is apparently:
(i) employed at, or an occupant of, that place; and
(ii) not less than 16 years of age.
2A.12 If notice is given by post to a person in accordance with paragraph 2A.11(2)(a) or (b), service is taken to have been effected if the person is in Australia - at the end of 5 working days after the day of posting.
Primary judge's reasons
Ryan J accepted the Tribunal's finding that the letter containing the decision refusing the appellant's application was posted to him by certified mail on 9 September 1993, and that notice of the decision was given to him in accordance with reg 2A.11, and by force of reg 2A.12 was taken to have been effected on 16 September. His Honour held that the notice satisfied reg 2A.11 notwithstanding that it was written in English, a language the appellant could not read. He then held that reg 43E(3) and (4) required the appellant to "give" his application for review to the Tribunal within twenty-eight days of the date on which he was taken to have been notified of the Minister's decision, that is to say by midnight on 14 October 1993, and that on the evidence it had not been "lodged" within the prescribed time.
"Notification"
Under s166BA(1)(b) the prescribed period was a period
ending not later than twenty-eight days after the "notification" of
the decision. The appellant contended
that he had never been notified of
the decision, with the result that time had not started to run. All that had happened, it was submitted, was
that notice of the decision had been
delivered to him. He had not been
notified of the decision because the matters contained in it had not been
brought to his attention. I do not think
there is any difference in the present context between giving a person notice of a decision and notifying the person of the
decision. The Macquarie
Dictionary meaning of "notify" is "to give notice to, or
inform, of something". One of the Shorter Oxford meanings is "To give
notice to; to inform".
Where the Minister decided to refuse a refugee status application, reg 2A.11 required him to "give notice of the decision to the applicant". Notice could be given by post or in any of the other ways specified in sub-reg (2). If notice was given by post, service was taken to have been effected at the end of five working days after the date of posting. A requirement that a person be given notice of something does not demand that the thing be brought home to the person's understanding or knowledge: Goodyear Tyre and Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd [1958] 1 WLR 857 at 863. Notice is not synonymous with knowledge: Cresta Holdings Ltd v Karlin [1959] 1 WLR 1055 at 1057. But quite apart from authorities such as these, regs 2A.11 and 2A.12 contemplated that notice given in accordance with reg 2A.11 might not in fact come to the attention of the applicant. See reg 2A.11(2)(a), (b), (c)(ii), (d) and 2A.12.
So in my view there is no substance to the submission that the appellant was never notified or given notice of the Minister's decision because the Minister had not done what was necessary to bring the substance of the decision to the appellant's knowledge.
Should the notice have been in Vietnamese?
The appellant contended that the document advising him
that his application had been rejected was not a valid notification for the
purposes of s166BA(1) because it was in a language he could not read. It was said that in order to be valid, the
notification must be effective, that is to say something the recipient can
understand. As I have indicated in the
previous part of these reasons,
notice or notification is not synonymous with knowledge. A notice or notification would be effective
if given in accordance with reg 2A.11 even if the applicant did not receive it.
I agree with the learned primary judge when he said:
To uphold the applicant's contention in the present case would put each notice given by the Minister at risk of being defective according to whether a court subsequently determined that a particular recipient had sufficient knowledge of English to apprehend its import. In my view, the general effect of statutory provisions like Reg 2A.11 is to require only that the notice be given in English in a sufficiently formal or official way to alert an ordinarily astute recipient who does not understand that language to its potential significance and to the need to have it translated or to obtain advice about it. I regard the notice in the present case as satisfying this requirement.
The events that happened show that the notice had the effect contemplated by his Honour. The appellant received a letter on the Department's official notepaper bearing the Australian coat of arms. He took it to his solicitor who advised him of its contents and helped him prepare an application for review.
The official language of Australia is English. The Constitution, statutes, regulations and by-laws are written in English. Proceedings in Parliament and the courts are conducted in English. Governments correspond with their citizens in English. In that context a requirement that an appellant be notified in writing of a governmental decision affecting him is, in the absence of something showing a contrary intention, to be understood as requiring a notification in English.
Estoppel
The appellant contended that the respondent is estopped from asserting the efficacy of a notice in English. The estoppel was said to arise from the fact that the respondent knew the appellant required an interpreter, and informed him that an interpreter would be provided to assist him in his interview at the Department. This contention was not put to the primary judge. The respondent played no part in the making or communication of the decision complained of, and those who did were not parties to the application for review of the Tribunal's decision. But putting these obstacles to one side, in order to establish an estoppel the appellant must show that there was a representation by the Department that communications with him would be in Vietnamese. The representation must be clear: Legione v Hateley (1983) 152 CLR 406 at 435. The facts relied on fall far short of establishing a clear representation that correspondence from the Department to the appellant would be in Vietnamese. Further, a person will not be estopped from departing from a representation unless "as a result of adopting it as the basis of action or inaction, the other party will have placed himself in a position of material disadvantage if departure from the assumption be permitted": Legione v Hateley (1983) 152 CLR at 437. Assuming the representation to have been made, the Department's departure from it did not cause detriment to the appellant. As I have said, he took the document to his solicitor, had it explained to him, and on the basis of the advice he received, signed an application for review of the decision.
Racial discrimination
It was argued before us, though not before the primary judge, that s10 of the Racial Discrimination Act 1975 conferred on the appellant the right to be notified in Vietnamese, his "first" language, of the Minister's decision. Since the letter was in English, the time within which he had to lodge his application with the Tribunal had not started to run.
Section 10(1) provides:
If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
The fact that an applicant does not enjoy a right to receive notification in his primary language or only language will activate the sub-section only if persons of another race, colour or national or ethnic origin do enjoy that right. Notification is given in English, which may be the primary or only language of some people who receive notification. However, those people do not have a right to receive notification in their primary or only language, although this is in fact what occurs. Rather the notification is given in English because that is Australia's official language. (See above under "Should the notice have been in Vietnamese?") That it is the primary or only language of some of those who receive notice is co-incidental. To maintain that they have a right to receive notification in their primary or only language is to mis-characterise the right. It is a right, shared by all applicants, to receive notification in Australia'a official language, which merely happens to be the primary or only language of some of them.
I did not understand the applicant's counsel to have
argued that the "right" within s10(1) was the right to receive
notification of the Minister's decision, and that because he did not read
English he enjoyed that right to a more limited extent than persons who did
read English. However the respondent's
counsel appears to have understood the case to have been put in
that way. In my view this
"alternative" submission is unsound.
The fact that the Minister's letter was in English does not mean that
the applicant enjoyed the right to receive notification to a more limited
extent than would a reader of English.
That is because, as I have indicated under "Notification", it is not necessary in order that a person
receive notification of a decision that the content of the notice be brought to
his knowledge.
Section 29 Acts Interpretation Act
The appellant contended that s29 of the Acts Interpretation Act 1901 required a finding that the application to the Tribunal was within time. We were told that this submission was put to the primary judge. There is no reference to it in his Honour's reasons. Section 29(1) provides:
Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
Section 46(1)(a) provides that where an Act confers power to make regulations, the Acts Interpretation Act applies to the regulations as if they were an Act and as if each such regulation were a section of an Act. The Migration Act does empower the making of regulations, and accordingly the effect of s46(1)(a) is that unless the contrary intention appears from the regulations, the appellant's application to the Tribunal would be deemed to have been "served" on the Tribunal at the time when it would be delivered in the ordinary course of post, unless service is proved to have been effected otherwise than in the ordinary course of post.
Regulation 43E(4) unmistakably expressed a contrary intention for the purposes of s29(1) as adapted to regulations by s46(1)(a). It provided that an application posted to the Tribunal was not to be taken to have been lodged until it was received at a registry of the Tribunal.
In addition, there was evidence before the Tribunal that the letter was delivered otherwise than in the ordinary course of post. The Tribunal found that the application was "given" to the Tribunal on 18 October 1993. That finding was well open to the Tribunal, and was accepted by the primary judge.
Accordingly s29 of the Acts Interpretation Act does not assist the appellant.
Validity of reg 43E
The appellant submitted that reg 43E(3) was
beyond power. It was said that
s166BA(1)(b) required an application for review to be "given" to the
Tribunal within the prescribed period, whereas reg 43E(3) required it to be
"lodged". It was submitted
that this rendered the regulation invalid.
It was said that "lodging" an application is a more formal and
onerous obligation that "giving" it.
This submission was not made to the primary judge. I do not think it has any substance. Sub-regulations (1) and (2) prescribed the
period with which s166BA(1)(b) was concerned.
Sub-regulations (3) and (4) depended on the regulation making power at
the time contained in s181. Section
181(1) empowered the Governor-General to make regulations, not inconsistent
with the Act, prescribing all matters which were necessary or convenient to be
prescribed for carrying out or giving effect to the Act. Without limiting the generality of that
power, the regulations could make provision "for and in relation to ...
the giving of documents to ... any person or body": par (e). Sub-section (2) provided that the regulations
that could be made under par (e) included regulations providing
that a document given to or served on a person in a specified way were to be
taken to have been received by the person at a specified or ascertainable time.
What reg 43E(3) did was to provide that an application was to be given to the Tribunal by being lodged at a registry. The word "lodged" was probably used because of the nature of the body to which the document was to be given. The sub-regulation gave a quite artificial meaning to the word "lodged" so as to render irrelevant its ordinary meaning. An application could be lodged, and thus given, by posting it to a registry, by leaving it in a lodgment box at the registry, by leaving it with an employee at the registry, or by faxing it to the registry. So understood, reg 43E(3) did not impose on an applicant a more onerous obligation than s166BA(1)(b) contemplated. However I will not pursue this matter, because I do not see how the submission at present under consideration assists the appellant. If reg 43E(3) and (4) were beyond power, the appellant is left with s166BA(1)(b) which required his application to be "given" to the Tribunal within the prescribed period. In order to give a document to someone, it must be brought to his attention: National Mutual Life Association v Windsor (1991) 100 ALR 585 at 595. The application was not brought to the Tribunal's attention until it was received on 18 October 1993.
The appeal should be dismissed with costs.
I certify that this and the preceding ten pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg
.................................................
Associate
24 April 1997
IN THE FEDERAL COURT OF AUSTRALIA)
VICTORIA DISTRICT REGISTRY )
GENERAL DIVISION )
No. VG 660 of 1996
BETWEEN: CUONG VAN NGUYEN
Appellant
AND: M.W. GERKENS,
REFUGEE REVIEW TRIBUNAL
Respondent
CORAM: Tamberlin, Sundberg and Marshall JJ
PLACE: Melbourne
DATE: 24 April 1997
REASONS FOR JUDGMENT
MARSHALL J
This is an appeal from the
judgment of Ryan J (“the trial judge”) in which his Honour dismissed the
application of Cuong Van Nguyen (“the appellant”) for review of a decision of a
member of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had determined that it was
unable to deal with an application made to it to review decisions of a delegate
of the then Minister for Immigration and Ethnic Affairs (“the Minister”)
refusing the appellant refugee status and refusing the appellant a domestic
protection (temporary) entry permit. The Tribunal so determined as it held that
the applications made to it had been received by it outside
the limitation period specified in s166BA(1)(b) Migration Act 1958 (“the Act”) as it stood in July 1994.
FACTUAL BACKGROUND
The appellant is a thirty-nine year old male who is a citizen of Vietnam. He left Vietnam on 11 April 1992 as a tourist in order to visit his siblings who are resident in Australia. In September 1992 he applied to the Minister for refugee status. In October 1992 he applied for a domestic protection (temporary) entry permit. On 25 August 1993 he was interviewed by officers of the Minister’s department with the assistance of a Vietnamese interpreter. On 9 September 1993 the appellant was sent a letter in English by certified mail advising him of the rejection of his applications.
There is no evidence as to when he received
that letter. On 28 September 1993 the
appellant consulted a solicitor regarding the rejection of his
applications. On 29 September 1993 his
solicitor posted an application by the appellant to review the decision of the
Minister’s delegate to the registry of the Tribunal. On 18 October 1993 the application was date
stamped in the Tribunal’s Registry and entered in the Tribunal’s
Registry’s diary as having been received by it on that date.
On 1 July 1994 the Tribunal conducted a hearing on “a jurisdictional issue” i.e. whether it had the power to entertain the application. By its decision on 18 July 1994, the Tribunal concluded that it was unable to entertain the application as it had been received out of time. On 8 August 1994 the appellant filed in the Court an application to review the Tribunal’s decision. The matter was heard by the trial judge on 22 February 1996. On 8 October 1996 the trial judge dismissed the application and published his reasons for judgment.
THE LEGISLATIVE CONTEXT
At the relevant time, i.e. September/October 1993, s166BA(1)(b) of the Act provided as follows:
“1. An application for review of an RRT-reviewable decision must:
...
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision;”
Regulation 43E Migration (Review) (1993) Regulations provided that:
“(1)For the purposes of paragraph 166BA (1) (b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal.
(2) A period mentioned in subregulation (1) commences on the date on which the applicant is notified of the decision to which the application relates, and ends at the end of:
(a) in the case of an application given to the Tribunal by or for an applicant:
(i) in custody under the Act on that date; or
(ii)detained in a processing area on that date;
7 working days (beginning with the first working day that occurs on or after that date); or
(b) in any other case - 28 days.
(3) Subject to this regulation, an application must be lodged at a registry of the Tribunal:
(a) by posting the application to that registry; or
(b) by leaving it at the registry in a box designated for the lodgment of such applications; or
(c) by leaving it with a person employed at that registry and authorised to receive such documents; or
(d) by means of electronic facsimile transmission to that registry.
(4) An application posted in accordance with paragraph (3) (a) or transmitted in accordance with paragraph (3) (d) is not to be taken to have been lodged until it is received at a registry of the Tribunal.”
Regulations 2A.11 and 2A.12 of the Migration (1993) Regulations provided as follows:
“2A.11 (1) If the Minister decides to refuse a refugee status application or an application for review, the Minister must, in accordance with subregulation (2), give notice of the decision to the applicant.
(2) Notice must be given by:
(a) posting the notice to the person at the person’s latest address for service provided in the refugee status application or application for review; or
(b) posting the notice to the person at the person’s residential address provided in the application; or
(c) giving the notice:
(i) to the person personally; or
(ii)to another person duly authorised to receive documents on behalf of the person; or
(d) leaving the notice at the last known place of business or residence of the person with another person who is apparently:
(i) employed at, or an occupant of, that place; and
(ii)not less than 16 years of age.
2A.12 If notice is given by post to a person in accordance with paragraph 2A.11 (2) (a) or (b), service is taken to have been effected if the person is in Australia - at the end of 5 working days after the day of posting.”
THE ISSUES ON APPEAL
(a) Did the notice posted to the appellant on 9 September 1993 constitute satisfactory notice for the purposes of Regulations 2A.11 and 2A.12 as set out above?
There is no dispute that the notice was posted to the appellant at his address and that service was deemed to be effected on 16 September 1993. However, the appellant contended that the notice was not proper or real notice to him as it was in English rather than in Vietnamese. He submitted that it was known to the Minister’s delegate that he required a Vietnamese translator or interpreter to properly inform him of the contents of the notice. This submission was also put to the trial judge, who rejected it. The trial judge said that:
“... It is significant that Reg. 2A.11 requires only the giving of notice of the decision to an applicant. It does not require the Minister affirmatively to establish that the decision has come to the knowledge of the applicant. Moreover, the scheme of the Regulations contemplates that notice may be deemed to have been given in circumstances in which the decision might not actually have come to the knowledge of the applicant. As Lord Evershed M.R. observed in Goodyear Tyre and Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd [1958] 1 WLR 857 at 863:
The word
‘notice’ to a lawyer, in my judgment, means something less than full
knowledge. It means, no doubt, that the
thing of which a man must have notice must be brought clearly to his attention. What, in different
cases, may be sufficient notice is a matter which will be decided when those
cases come before the courts; ...
See also Cresta Holdings Ltd v Karlin [1959] 1 WLR 1055 where Hodson LJ at 1057 emphasised that ‘ “notice” is not synonymous with “knowledge” ’. To uphold the applicant’s contention in the present case would put each notice given by the Minister at risk of being defective according to whether a court subsequently determined that a particular recipient had sufficient knowledge of English to apprehend its import. In my view, the general effect of statutory provisions like Reg. 2A.11 is to require only that the notice be given in English in a sufficiently formal or official way to alert an ordinarily astute recipient who does not understand that language to its potential significance and to the need to have it translated or to obtain advice about it. I regard the notice in the present case as satisfying this requirement.”
The appellant further contended, before the Court on the appeal, that the relevant regulations and s166BA(1)(b) of the Act had to be read in light of the provisions of s10 Racial Discrimination Act 1975 (“the RD Act”). That section provides that:
“(1)If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.”
As Mason J said in Gerhardy v Brown (1985) 159 CLR 70, 94:
“Section 10 is not aimed at striking down a law which is discriminatory. ... Instead it seeks to ensure a right to equality before the law by providing that persons of the race discriminated against by a discriminatory law shall enjoy the same rights under that law as other persons.”
Further at 99, Mason J said:
“...s 10 should be read ... as a provision which is directed to lack of enjoyment of a right arising by reason of a law whose purpose or effect is to create racial discrimination.”
It is not the purpose of the
relevant Commonwealth law (i.e. s166BA(1)(b) of the Act and Regulation 2A.11)
to create racial discrimination. A
question arises as to whether that is its effect. In the circumstances, I do not believe that
it is. The right which is enjoyed by
persons of another race, i.e. the right to receive the notice, albeit in the
English language, is not a right which is denied to persons of Vietnamese
ethnicity. If the relevant right is to
be construed more broadly as a right to receive the notice in one’s own language
and that right is enjoyed by Anglo-Australians but said to be denied to persons
of Vietnamese ethnicity, then problems
immediately arise regarding the validity of the assumption that all persons of Vietnamese ethnicity will be literate in the Vietnamese language.
Equally, it cannot be assumed that all English speaking recipients of notices from a delegate of the Minister will be literate in English. The requirement that the notice be sent to the applicant for refugee status carries with it an implication that the notice will be in English which is the official national language. No racial discrimination thereby arises against non-English speaking applicants, especially in circumstances where such persons are required initially to make application in English for refugee status in Australia.
In my view there is no substance in the submission that the giving of notice to the appellant by the Minister’s delegate was not effective notice in that the Act and regulations pursuant to which it was given must be read in light of s10 of the RD Act. In my opinion, for the reasons set out above, s10 of the RD Act has no relevant application to the facts of this case.
The appellant further submitted that the respondent was estopped from asserting that a notice in English was effective notice to him in the circumstances. For the reasons given by Sundberg J in his reasons for judgment I reject that submission.
(b) Were the requirements of regulations 2A.11 and 2A.12 otherwise satisfied?
The appellant contended that mere delivery to him of the notice is not good service and that the actual bringing to his attention of the matters contained therein was required. For the reasons contained in that portion of the judgment of the trial judge set out above, I am of the view that all the regulation requires is that the Minister’s delegate give notice to the applicant of his decision regarding the application. In this case that was done. The appellant contended that “notification” referred to in s166BA(1)(b) of the Act is not the same as “notice”. In my view, the distinction between “notification” and “notice” is a distinction without difference in the circumstances.
(c) Does s29 actsinterpretation act 1901 require afinding that the application was lodged within time?
The appellant submitted that s 29 of the Acts Interpretation Act 1901 required a finding that the application was lodged within time.
Section 29 Acts Interpretation Act 1901 provides that:
“(1)Where an Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
The Act, through s166BA thereof and
Regulation 43E of the Regulations authorised the service of an application for
review of a Tribunal decision by post.
The respondent submitted that s29 of the Acts Interpretation Act was inapplicable nonetheless because
Regulation 43E(3) provides a code for the manner in which such an application
may be given to the Tribunal. I agree
with that submission. However, even if I
am in error as to that matter, there was evidence before the trial judge which
demonstrated that the letter from the appellant’s solicitor was not delivered
in the ordinary course of post.
Specifically, there is the finding of
the relevant member of the Tribunal that the application was given to the
Tribunal on 18 October 1993. It was open
to the trial judge to accept that finding.
In the course of the appellant’s submissions regarding s29 of the Acts Interpretation Act 1901, the appellant raised further issues concerning Regulation 43E of the Regulations. The appellant submitted that Regulation 43E(3) was ultra vires the Act because it imposed a more onerous obligation than that contained in s166BA(1)(b) of the Act. It was submitted that the act of “lodging” an application is more onerous than the act of “giving” the application to the Tribunal. I reject that submission. The requirement for an application to be lodged in Regulation 43E(3) is defined within the subregulation specifically in the lettered paragraphs which are all methods by which an application is given to the Tribunal. Even if Regulation 43E is invalid, the appellant would need to satisfy the requirement in s166BA of the Act that his application was “given” to the Tribunal not later than twenty-eight (28) days after the notification of the decision. There is no evidence that the application was given to the Tribunal within that time-frame.
Further, it is not to the point that s504(1)(e) of the Act empowers the Governor-General to make regulations which make provision for the giving, lodging and service of documents. Depending on the circumstances, the supply of a document may satisfy the concept of giving it to a person or body, lodging it with a person or body or serving it upon a person or body.
(d) Is the time limit directory only?
The appellant concedes that Regulation 43E
on its face provides for a mandatory time limit. It is also conceded that the Act and the
regulations provide no discretion for the extension of time. However, the appellant contends that in these
circumstances s10 of the RD Act applies so as to impose an extension of the
right to review. That submission is
without merit. There is a strict time
limit of twenty-eight days which reflects the will of the Parliament that the process of review regarding decisions concerning
refugee status be carried out with
expedition. That requirement for expedition applies irrespective of the ethnicity
of the applicant for refugee status and
irrespective of her or his command
of the English language. Under the Administrative Appeals Tribunal Act 1975
a quite different regime applies in contradistinction to the rigidity which
exists under the Act and regulations made thereunder.
ORDER
Having regard to the foregoing I would order that the appeal be dismissed with cost.
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date:
Counsel for the Appellant: D Perkins, with S Powell
Solicitor for the Appellant: Kuek and Associates
Counsel for the Respondent: K Bell
Solicitor for the Respondent: Australian Government Solicitor
Date of hearing: 5 March 1997
Date of judgment: 24 April 1997
