FEDERAL COURT OF AUSTRALIA

Migration – application for judicial review – objection to competency – whether application filed out of time – when time commences to run – whether reg 5.03 of Migration Regulations applies to s 478 of the Migration Act – meaning of “within” – whether reg 5.03 deems applicant to have received document irrespective of actual receipt – whether deemed receipt encompasses notification.

Migration Act 1958 – s 478

Migration Regulations – reg 5.03

Acts Interpretation Act 1901 – s 36(1)

Shrestha v The Minister for Immigration and Multicultural Affairs, 13 October 1997, unreported – dist.

Nguyen v The Minister for Immigration and Ethnic Affairs (1996) 68 FCR 437 – dist.

Reynolds v Reynolds (1941) VLR 249 – cons.

Morton v Hampson (1962) VR 364 – cons.

Ward v Walton (1989) 10 MVR 537 – cons.

SUSIATIN SUSIATIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1002 of 1997

JUDGE:          BEAUMONT J.

PLACE:          SYDNEY

DATE:            5 JUNE 1998

ORDERS:

1.         Objection to competency upheld.

2.         Application dismissed with costs.

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

REASONS FOR JUDGMENT

BEAUMONT J:

Before the Court is a notice of objection to competency in an application for judicial review in a migration matter.  The background to the objection is as follows.  On 27 November 1997 the applicant, Susiatin Susiatin, filed an application for an order of review naming the Minister for Immigration & Multicultural Affairs as the respondent.  The application stated that it was an application to review the decision of the Minister to refuse an application to remain permanently in Australia under a protection visa.  The application stated:

“The decision was made on 22 October 1997 and it is said to have been received by the Applicant on or about 27 October 1997.”

In her application the applicant said that she was aggrieved by the Minister's decision because, inter alia, she had a well-founded fear of persecution in the country of her nationality.

On 11 December 1997 the applicant filed an amended application for an order of review, again seeking to review the decision of the Minister to refuse an application to remain permanently in Australia under a protection visa.  The amended application went on to state:

“The decision was made on 22 October and is said to have been received by post by the Applicant on or about 29 October 1997.”

As has been noted, the Minister has now objected to the jurisdiction of the Court by a notice of objection to competency dated 19 January 1998.  The ground of objection stated in the Minister's notice is that the applicant did not commence proceedings pursuant to s 476 of the Migration Act 1958 (“the Act”) within the time period of 28 days following notification of the decision, as required by s 478 of the Act.  By s 478(1)(b) of the Act, an application under s 476 must be lodged with a registry of the Federal Court “within 28 days of the applicant being notified of the decision”.

By s 478(2) of the Act, it is provided that the Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in s 478(1)(b).  It is accepted by the applicant, in accordance with an established line of authority within the Court, that if the applicant lodged her application outside the period specified in s 478(1)(b), this Court does not have jurisdiction.  However, it is contended on behalf of the applicant, that her application was not lodged outside that period.

In order to understand the question of law which now arises for determination, it will be necessary to refer to some further background facts.  Although the applicant's application and amended application described the decision sought to be judicially reviewed as a decision of the Minister, it is now accepted that this was erroneous and that the relevant decision was that of the Refugee Review Tribunal (“the Tribunal”).  Nothing seems to turn on this description for present purposes.

By letter dated 22 October 1997 addressed to the applicant, a Deputy Registrar of the Tribunal wrote to the applicant in the following terms:

“Dear Mrs Susiatin

RE:        APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS)

RRT Ref:        N96/11946

DIMA Ref:     95/3785

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.  A copy of the decision has also been sent to the Department of Immigration and Multicultural Affairs (DIMA).

The Tribunal’s file on your case is now closed.

You may have a right of review of this decision in the courts.  You may wish to get independent advice about this.

If you want the Federal Court of Australia to review your case you must apply within thirty-five (35) days after the date of this letter and you must name the Minister for Immigration and Multicultural Affairs as the respondent and not the Tribunal.

If you have any questions about your current status in Australia you should contact your regional office of DIMA, not the Tribunal.”

A copy of the Tribunal's decision and reasons was enclosed with the letter.

The process relied upon by the Minister for notification to the applicant of the decision is described in the affidavit of Richard Wong, sworn 24 March 1998.  In his affidavit, the evidence is as follows:

“1.       I am an officer of the Commonwealth Public Service attached to the Refugee Review Tribunal (‘the Tribunal’).

2.         In October 1997 my duties included sending Tribunal decisions out to applicants by Registered Post.  I followed a regular practice when handling and sending these documents.  Each decision was headed ‘Refugee Review Tribunal Decision and Reasons for Decision’ and was accompanied by a letter to the applicant signed by me for the Deputy Registrar.  I placed the decisions with their covering letters in envelopes, sealed them and listed them in the Tribunal form headed ‘Registered Post Records’.  They were then taken with other correspondence by another colleague to the South Sydney Post Office and mailed by Registered Post.

3.         As part of my duties, I completed Tribunal forms headed ‘Registered Post Records’ on which I listed the names, addresses and file numbers of applicants to whom I sent decisions and covering letters.  Annexed hereto and marked with the letter ‘A’ at item 15 is a Registered Post Record completed by me on 22 October 1997.  The words ‘Mrs S. Susiatin, 4 Woodbury Street, Marrickville, NSW, 2204, 11946’ which appear on the form are in my handwriting.  On each occasion, including on 22 October 1997, I made use of the Australia Post Registered Post pre-paid labels bearing the reference number for each item which I sent, and I stuck these slips beside the name and address of each applicant.  I am able to say, on the basis of the regular practice that I followed, that annexure ‘A’ at item 15 records my sending a Tribunal decision and a covering letter to Mrs Susiatin at that address on 22 October 1997.

4.         I also followed a regular practice of marking the Australia Post reference number on a copy of the letter which I sent to the applicant.  Annexed hereto and marked with the letter ‘B’ is a copy of a letter to Mrs Susiatin dated 22 October 1997 on which I have written the letters and numbers ‘RP#2151244’.

5.         Inquiries have been made with Australia Post regarding the delivery of item RP2151244.  Annexed hereto and marked with the letter ‘C’ is a copy of a receipt which the Tribunal received from Australia Post in response to those inquiries.”

Annexure “A” to Mr Wong's affidavit is a registered post record and it corroborates the description of that document given in paragraph 3 of the affidavit.  Annexure “C” to Mr Wong's affidavit consists of a document of Australia Post entitled "Receipt for ‘Signature on Delivery’ Articles".  That document refers to article number RP2151244, which is the reference given in annexure “A” above, and it shows the name and address of the addressee, being “Mrs Susiatin” and "4 Woodbury St".  It is then stated that there has been a receipt of one article.  A signature then appears, which is difficult to decipher, and below that appears a signature of an Australia Post officer and alongside this is the date 23 October 1997.  That date also appears at the top of annexure “C”.  The applicant gave affidavit evidence herself in her affidavit sworn 14 February 1998.  She said:

“1.       I am the applicant to the Federal Court for an order of review of a decision by the Refugee Review Tribunal to refuse me a Protection Visa.

2.         The decision of the Refugee Review Tribunal is dated 22 October 1997.  In my application I have stated a copy of this decision was received by me on or about 27 October 1997, later amended to 29 October 1997.

3.         I do not remember exactly when I received the Refugee Review Tribunal letter and decision of the Tribunal.

4.         At the time I received this written decision I was living at 4 Woodbury Street Marrickville in the State of New South Wales.

5.         My accommodation at Marrickville for the relevant period and up until December 1997 was shared accommodation in a boarding house with about twelve other residents.

6.         Mail was delivered to a mail box in the front yard by Australia Post.  Somebody would then bring everybody’s mail into the house.  The collected mail would then be identified by the residents and taken from the table inside.

7.         For the relevant period, that is the end of October 1997 and November 1997 I worked from early morning, about 8 o’clock, until usually about 10 pm.

8.         I did not know until now how important the time I received the decision of the Refugee Review Tribunal could become.

9.         It is my honest belief that the letter from the Refugee Review Tribunal was not received by me until the weekend of 1 November 1997.  My reason for this belief is  that my long working hours during the week usually meant that I did not collect and read my mail until the Saturday morning.  I would commence work at 3 or 4 pm on Saturdays and this allowed the time to catch up on personal tasks like laundry, shopping and reading my mail.

10.       Saturday 1 November 1997 is the first Saturday in the relevant period.”

The applicant also swore an affidavit on 30 April 1998 in the following terms:

“1.       I have read the Affidavit of Richard Wong sworn 24 March 1998 and filed in these proceedings.

2.         I refer to annexure ‘C’ in the Affidavit of the said Richard Wong.  The signature appearing on that annexure is not my signature and I have never signed in that way.  I do not know who’s signature that appears to be.

3.         I adhere to the evidence deposed to in my affidavit sworn 14 February 1998 and filed in these proceedings.”

On behalf of the Minister, reliance is placed not only upon the provisions of s 478 of the Act, but upon the provisions of Regulation 5.03 of the Migration Regulations.  This regulation was amended on 14 May 1997, the amendment commencing on 1 July 1997, so that the regulation, in its amended form, was in force at the time of the sending of the Tribunal's letter dated 22 October 1997.  In its amended form the regulation, so far as presently relevant, reads as follows.

“5.03.  (1A)     This regulation applies to a document sent by the Minister, a Tribunal or a review officer to an applicant, of any kind, under the Act or these Regulations.

            (1)        For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the applicant at the time that the document is taken to be received at the address to which the document is sent, which is either:

(a)        if the document is sent from a place in Australia to an address in Australia - 7 days after the date of the document; or

...

(2)        Sub-regulation (1) does not apply to a document unless it is sent within 7 days after the date of the document.”

On behalf of the Minister, it is accepted that time should be reckoned to commence on the day after the date of posting of the letter, that is, 22 October 1997.  Therefore, it is accepted on behalf of the Minister that, for present purposes, time should be reckoned to commence on 23 October 1997.  Reference is made in this connection on behalf of the Minister to the provisions of s 36(1) of the Acts Interpretation Act 1901.  It is there provided that where, in an Act, any period of time dating from a given day, act or event is prescribed or is allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.

It is then submitted on behalf of the Minister that there should be allowed for present purposes a total period of 35 days, commencing on 23 October 1997.  The 35 day period consists of the 28 days allowed by the Act and the seven days allowed by the regulations.  It is said that the 35 day period expired on 26 November 1997, that is to say, the day before the application was filed. 

On behalf of the Minister reference is then made to Sackville J’s decision in Shrestha v The Minister for Immigration and Multicultural Affairs, 13 October 1997, unreported, where the authorities in this general area are reviewed, and where it was held by his Honour that, for the purposes of determining whether an applicant has been notified of a decision of the Minister for the purposes of seeking a review of the Minister's decision before the Tribunal, it need not be shown that the applicant actually received notification of the Minister's decision.  That is to say, his Honour held that, in that legislative context, the phrase “is taken to have been received” was not a rebuttable presumption.  And, the Minister says, this provides, at least, some analogy in the present case.  It is, however, acknowledged by counsel for the Minister that there are now some differences in the present legislative scheme. 

On behalf of the applicant, reliance is placed upon Moore J’s decision in Nguyen v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 437.  It is acknowledged by counsel for the applicant that his Honour's decision was made before the recent amendment to the regulations, but the general thrust of his Honour's reasons is relied upon by the applicant.  Moore J there held that, for the purposes of s 478(1)(b) of the Act, the notion of notification is one of actual notification rather than imputed notification, as provided by the regulations.

In my opinion, both the decision of Sackville J and of Moore J are distinguishable for present purposes.  In Shrestha the crucial legislative provision was s 53(3) of the Act which provides as follows:

“(3)     If the Minister sends or leaves a notification to the applicant at the address for the applicant given under subsection (1) and (2), the notification is taken to have been received by the applicant even if it was not received.”

There is no counterpart of this provision in the present case. 

On the other hand, it seems to me that Nguyen is likewise distinguishable, but for a different reason.  That is to say, it is clear from a reading of Moore J's reasons that his Honour founded his decision upon the absence of any provision in the regulations stating that the regulations applied to any provision of the Act and, in particular, to s478(1)(b).

Moore J said (at 445):

“.... the existence of a regulation-making power that enables the creation of a scheme to impute receipt of a document at a specified time, and thus notification of a decision, and enables that to be done ‘for all purposes of [the] Act’, supports the construction of s 478(1)(b) that it would require, in the absence of such a scheme, actual notification.  It authorises a regulation that would modify the way the Act would otherwise operate.  As earlier discussed, such a scheme is not presently found in the regulations as it directly concerns the time of notification for the purposes of s 478(1)(b).  That is so because reg 5.03 does not apply to notice required to be given by s 478(1)(b).  Accordingly I have concluded that the application lodged by the applicant was lodged within the time specified by that section as the applicant was not notified of the decision till 13 July 1995.”

As has been said, the regulations were amended in May 1997.  In their earlier form (that is to say, in their form at the time of the decision in Nguyen), regulation 5.03(1) opened with the following language:

“5.03.  (1)        For the purposes of these Regulations, and subject to specific provision elsewhere in these Regulations, a document that is sent by the Minister or a Tribunal is taken to be received: ......”

It will be noticed that the amendment to this Regulation, which was made in 1997, is significant for present purposes.  It is now provided in regulation 5.03(1)(A) that the regulation applies to a document of the present kind.  More significantly, it is now provided by regulation 503(1) that a document is taken to be received by the applicant at the time there specified, not only for the purposes of the regulation, but also for the purposes of the Act. 

It was submitted on behalf of the applicant that the reference in the amended regulation to "the purposes of the Act" should not be interpreted so as to extend to the provisions of s 478.  However, I cannot accept this submission.  There is no reason, of logic, experience or otherwise, to read down the general reference to the purposes of the Act in the manner suggested.  On the contrary, in the light of the decision in Nguyen there is every reason to suppose that the regulation was amended to deal with the precise point that Moore J had raised.

That being so, the present question of law resolves itself into one of interpretation which is relevantly free of any authority. 

I turn then to the provision of s 478(1)(b).  As has been noted, it is there provided, as a mandatory requirement, that an application of the present kind "must be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision".

The first question that arises concerns the meaning of the term "within" in this context.  In Reynolds v Reynolds [1941] VLR 249, O'Bryan J said (at 252):

“The word ‘within’ in relation to a period of time does not usually mean ‘during’ or ‘throughout the whole of’;  it is more frequently used to delimit a period ‘inside which’ certain events may happen.”

In Morton v Hampson [1962] VR 364, the Full Court said (at 365):

“The modern rule in relation to a period of time fixed by statute ‘within’ which an act is to be done after a specified event is that the day of the event is to be excluded;  the next day is that first day of the stipulated period and the time expires on the last day of the period, counting from and of course including the first day.”

In Ward v Walton (1989) 10 MVR 537, a question arose as to the meaning of s 44(3)(b)(i) of the Limitation Act 1981 (NT) which prohibits the exercise of a discretion to extend the time to lodge an action for damages arising from a motor vehicle accident unless the Court is satisfied that the action has been instituted "within 12 months after the ascertainment of” the material facts by the plaintiff.  Asche CJ said (at 541):

“So far as the Oxford English Dictionary defines ‘within’ in temporal terms, those definitions are as follows:  ‘In the limits of (a period of time);  most usually, before the end of, after not more than;  also, since the beginning of, not more than... ago;  or generally between the beginning and end of, in the course of, during’. 

Clearly some of those definitions favour the appellant, (‘before the end of’), some, the respondent (‘during’).  In the context, however, and to avoid an otherwise absurd result I consider that the former meaning is appropriate.  For it seems to make good sense for the court to be satisfied that ‘the action was instituted within’ (ie, before the end of or not later than) ’12 months after the ascertainment of those facts by the plaintiff’. 

A reading of ‘within’ as meaning ‘before the end of’ appears in Earl of Morton’s Trustees v McDougal 1944 SC 410... Lord Justice-Clerk Cooper said, at 443:  ‘It is to be noted that the words are ‘within one month’ and not ‘within the month’.  According to its normal significance, as evidenced by the dictionaries, ‘within’ when applied to a period of time most usually means ‘before the end of’...  It seems to me that that is a sufficient meaning to give to the words of the statute - in other words to read them as prescribing a time limit on the expiry of which, if the claim and particulars have not been given, the claim will prescribe.’”

In my opinion, the word "within" in the present context, has a meaning similar to that attributed to it in the authorities I have mentioned, that is to say, it should be read as indicating the limits of a period before the end of which the relevant act must be done and that for this purpose, the day of the act in question is to be excluded.  That is to say, for present purposes, I accept the approach with respect to calculation of the time or its reckoning suggested on behalf of the Minister, although I do not think that the Acts Interpretation Act provision applies at least directly here.  The same result as that contemplated by s 36(1) of the Acts Interpretation Act is achieved by interpreting the word "within" in the way I have found.  So much is not seriously contested on behalf of the applicant. 

The real issue that has emerged in the course of argument arises in relation to the concluding words of s 478(1)(b):  that is, the phrase "of the applicant being notified of the decision".  If those words stood alone, and if no regulation had been made in the present context, there would be, at least, much to be said for the submission made on behalf of the applicant that what is required is actual, rather than imputed, notice.  So much would follow, I think, from the reasoning of Moore J in Nguyen, and from observations made in the Full Court decision in Long Guan Chun v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164, upon which Moore J relied.  However, s 478(1)(b) does not stand alone. It must be read in conjunction with the regulations, as part of the general legislative plan in this area.  I should note in this connection, that it is not suggested nor, on my present understanding at least, could it be suggested, that regulation 5.03 is beyond power.  I turn then to the meaning of that regulation.

I have already concluded that the reference in regulation 5.03 (1) “for the purposes of the Act” would pick up, inter alia, s 478.  The question then arises as to the meaning of the words in reg 5.03(1):

“...a document is taken to be received by the applicant at the time that the document is taken to be received at the address to which the document is sent...”  (Emphasis added).

In my opinion those words, construed literally, can only mean, in the present context, that the Tribunal's letter dated 22 October 1997, which was received at the Marrickville address, must be deemed to have been received by the applicant at the time.  The use of the word "taken" can only be read as a deeming provision.  However, to deem a document to have been received by the applicant, still leaves the question whether, for the purposes of s 478(1)(b), the applicant was "notified" of the decision.  Although in a sense there are differences in the language, and although in other contexts it may be said that receipt of a document may be different from being notified of something, I cannot, in the present connection, see any material difference.

If, by force of the regulation, a document is taken or deemed to have been received by the applicant, it must inexorably follow that, for the purposes of s 478(1)(b), I must conclude that the applicant was thereby notified of the decision.  Whatever literal differences there might be in the language, I am of the view that if the Act and the regulations, viewed (as they should be) as a single legislative plan, are read together, the clear purpose emerges that the operation of a deeming provision by which an applicant is deemed or taken to have received a document, must necessarily be equated with notification of the applicant of the document - in this case, the decision.

It must follow, therefore, that although the applicant was only one day short of the prescribed time, I must, regrettably, uphold the objection to competency.

ORDERS:

The orders I make are as follows:

1.                  Objection to competency upheld.

2.                  Application dismissed with costs.

Associate:

Dated:              5 June 1998