FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 613

MIGRATION – national of India – appeal from refusal of delegate of the Minister to allow application – whether notification of the refusal by registered letter delivered to a post office for collection was “sent to” the supplied address for the applicant – whether “sent” means sent or sent and received – whether the Tribunal erred in determining that it did not have jurisdiction to grant a protection visa because the application was out of time.

Migration Act 1958 (Cth)

Migration Regulations

Acts Interpretation Act 1901 (Cth)

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] 147 CLR 297  followed

Sook Rye Son (or Zhou Hui Ying) v Minister for Immigration and Multicultural Affairs, (Full Court of the Federal Court, Burchett, Moore, Katz JJ, 23 March 1999 unreported)

Chun Wang v Minister for Immigration & Multicultural Affairs (Federal Court, Merkel J, 13 February 1997 unreported)  cited

Shrestha v Minister for Immigration & Multicultural Affairs (Federal Court, Sackville J, 13 October 1997 unreported)  cited

Minister for Immigration & Multicultural Affairs v Ozmanian [1996] 141 ALR 322  cited

Fancourt v Mercantile Credits Ltd [1983] 154 CLR 87  followed

Tankexpress A/s v Gompagine Financiere Belge Des Petroles SA [1949] AC 76  followed

Seovic Civil Engineering Pty Ltd v Trevor Groeneveld (Full Court of the Federal Court, 22 March 1999, unreported)  followed

Lewes Nominees Pty Ltd v Strang [1983] 49 ALR 328  followed

Nguyen v Minister for Immigration and Ethnic Affairs [1996] 68 FCR 437  cited

Vinod v Minister for Immigration and Multicultural Affairs (Sackville J, 14 August 1996)  cited

Kamkar Minister for Immigration and Multicultural Affairs (North J, 9 December 1996)  cited

Dawai & Voravora v Minister for Immigration and Multicultural Affairs [1997] 71 FCR 379  cited

Santos v Minister for Immigration and Multicultural Affairs 1997] 144 ALR 229 cited

Tabet v Minister for Immigration and Multicultural Affairs [1997] 75 FCR 446  cited

Rahman v Minister for Immigration and Multicultural Affairs (Einfeld J, 1 June 1998)  cited

HARINDER PAL SINGH V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 88 OF 1998

THE HON JUSTICE MARCUS EINFELD AO

SYDNEY

11 MAY 1999

THE COURT ORDERS THAT:

1.      the decision of the Refugee Review Tribunal of 16 January 1998 be set aside

2.      the case be remitted to the Tribunal for a hearing on the merits

3.      the respondent pay the applicant’s costs

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

REASONS FOR JUDGMENT

1                     The facts of this case are relatively easy to state but not so easy to resolve.  The applicant is Indian.  He arrived in Australia on 18 March 1997 on a visitor’s visa and on 14 April 1997 applied for asylum as a refugee.  The application was refused by a delegate of the Minister on 15 September 1997 and a registered letter of advice of that date to that effect addressed to him at the address he had supplied, viz. 215 Macquarie Street, Dubbo NSW 2830, was despatched by the department by lodging it with Australia Post 2 days later, presumably at a post office in Canberra.  On 17 November 1997 the Refugee Review Tribunal received an application from Mr Singh for a review of the delegate’s decision, accompanied by a photocopy of a statement by the Postal Manager of Dubbo Post Office headed “To whom it may concern”, which stated that Mr Singh did not actually receive the department’s letter until 13 November 1997 because it “was inadvertently misplaced [by the Post Office] and a second card for the article was not posted until ……. 12 November 1997”.

2                     When postal articles are sent by registered post, they are not in fact delivered to the intended recipient but are retained by the nearest applicable post office which sends out a card of notification to the person concerned requiring the collection of the article from the post office within a certain time.  If the article is not collected by that time, a second card is sent out.  As I understand the position, if there is no response to that card, the article is sent back to the original sender. 

3                     The only evidence as to whether a first card was ever sent out at all in this case is an inscription on the outside of the departmental envelope stating “CARDED 19/9” but there is no evidence as to whether a first card was actually sent to Mr Singh at all and the Postal Manager’s statement in evidence states in effect that it was not.  In my view, in accord with the Tribunal’s apparent view, the conclusion should be drawn that it was not sent.  The applicant collected the letter on the day after the “second” card was “posted” and his application to the Tribunal for review was received four days later.  On 16 January 1998 the Tribunal determined that it did not have jurisdiction to grant the protection visa because his application for it was out of time.

4                     The relevant law may be stated reasonably shortly.  The class of visas known as protection visas is provided for by s.36(1) of the Migration Act 1958 (Cth).  A non-citizen who seeks a visa must apply for a visa of a particular class, in accordance with requirements specified in the regulations:  ss 45, 46.  The Minister is to consider a valid application for a visa:  s 47(1). 

5                     Section 53 provides:

                    53(1)     A visa applicant is to tell the Minister the address at which the applicant intends to live while the application is being dealt with.

(2)         If the applicant proposes to change the address at which he intends to live for at least 14 days, the applicant must tell the Minister the address and the period of proposed residence.

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

The purpose of this provision is to give the Minister the address at which s/he may communicate with an applicant for a visa, especially concerning the result of the application, and to put the onus of supplying the relevant address upon the applicant.  Only one address is provided for.

6                     After considering such an application, the Minister is to grant or refuse the application:  s.65(1).  Section 66(1) of the Act provides:

(1)         When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

7                     Regulation 2.16(1) of the Migration Regulations provides:

For the purposes of subsection 66(1) of the Act … the Minister is to notify an applicant of a decision to grant or refuse a visa:

(c)          by sending a notice of the decision to, or leaving a notice of the decision at, the last address given to the Minister by the applicant under section 53 of the Act… .

8                     By section 412(1), it is provided that an application of this kind must be given to the Tribunal not later than 28 days after the notification of the decision.  The 28 day period is further prescribed by regulation 4.31 where this period is stated to commence “on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of …. 28 days [thereafter]”.  By regulation 5.03, it is provided that, with certain exceptions, a document sent by a Minister is taken to have been received, relevantly to this case, 7 days after its date provided it was in fact sent within that period.  It states (emphases added):

(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 document; ….

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

There is no provision for the extension of any of these times by any power in the land unless they infringe the Constitution.  To the Tribunal, the consequence of these provisions for this case was that Mr Singh’s application to the Tribunal to review an adverse ministerial decision was required to have been made within 28 days of 22 September 1997, namely by 20 October 1997, whereas it was not in fact “given to the Tribunal” (s. 412(1)(b)) until 18 days later.

9                     In a careful and capable argument, the applicant’s counsel submitted that the Tribunal’s decision was erroneous when it determined that the letter of notification was “sent” to the applicant, within the meaning of regulation 5.03, on 17 September 1998, and that it was in fact “sent” when Australia Post handed the letter to him on 13 November 1997 or when its card was delivered the previous day.

10                  It is well established that apparently harsh restrictive laws which bear down on the rights of people must be interpreted strictly in accordance with the apparent legislative intention: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] 147 CLR 297 at 320; Chun Wang v Minister for Immigration & Multicultural Affairs (Federal Court, Merkel J, 13 February 1997 unreported); Shrestha v Minister for Immigration & Multicultural Affairs (Federal Court, Sackville J, 13 October 1997 unreported); Minister for Immigration & Multicultural Affairs v Ozmanian [1996] 141 ALR 322 at 345.

11                  The combination of section 53(3) and regulation 5.03 appears to deem conclusively that a notification sent within 7 days of the date it bears is received on the 7^th day even if it was not posted until the very end of the 7^th day so that it cannot be received within the 7 day period, and even if it can be definitively established that it was not received at all, at any time.  Having in mind that the substantive issue at stake may be the life or freedom of the individual concerned, such a potentially harsh provision should be scrutinised carefully to ascertain the true legislative intent.  Justice Sackville observed in Ozmanian that this intention was the achievement of what is seen by the authorities as “the requisite expedition and certainty in the review process”.  If so, an extension of a day or a week, or even a month or two in some cases, could hardly be described as disrupting the desired efficiency.

12                  Section 53(3) requires that the notification from the Minister to the applicant must be

(a)               sent OR

(b)               left

(c)               at the address given to the Minister by the applicant, being EITHER:

(d)               the one at which the applicant had told the Minister he intends to live while his application is being dealt with, OR

(e)               the different one at which he has told the Minister he intends to live for at least 14 days (in which case the intended period must also be advised).

13                  The first observation to make about this provision is, or would but for the seriousness of the subject matter, be somewhat semantic.  It is meaningless or inadequate to speak of a person’s obligation to send something at a place.  Clearly the word “to” must be implied after the word “send” to give effect to the obvious intent of the Parliament:  Acts Interpretation Act 1901 s 15AA.  Parliament has thus required that the notification be sent to or left at the address provided by the applicant.  If either has been done, subject to the 7 day requirement, the notification is deemed to have been received.  The deeming provision has no effect on the requirement to send the notification to the given address or to leave it at the address.

14                  On the other hand, section 29 of the Acts Interpretation Act 1901 (Cth) legislates a presumption that if not factually disproved, a posted article is delivered at the time it would be delivered in the ordinary course of post.  This provision gives way to a contrary intention in the relevant Act.  As to an equivalent section in State legislation, the High Court said in Fancourt v Mercantile Credits Ltd [1983] 154 CLR 87 at 97 that delivery is not equivalent to receipt and the fact of non-receipt does not displace the presumption of delivery.

15                  As it seems to me, the delivery of a postal article must impart or embrace the concept that the article was “sent”, although as Lord Uthwatt said in Tankexpress A/s v Gompagine Financiere Belge Des Petroles SA [1949] AC 76 at 101, albeit in another context:

“Sending” means sending and does not involve receipt.

See also Seovic Civil Engineering Pty Ltd v Trevor Groeneveld (Full Court of the Federal Court, 22 March 1999, unreported).

16                  On the other hand, the High Court said in Lewes Nominees Pty Ltd v Strang [1983] 49 ALR 328 at 330:

… the words ‘sent by post’ are ambiguous.  A document may be sent by post within the meaning of those words either when it is posted or when it would, in the ordinary course of post, reach its destination: it all depends on the context … .  In the present agreement, the words ‘if sent by post shall be deemed to be delivered in due course of post’ indicate that the notice is ‘sent’ within the meaning of c13, not when it is posted but when it is deemed to be delivered.

17                  However, the present case does not raise the question of receipt.  It is common ground that the notification was not left at 215 Macquarie Street, Dubbo.  The question in dispute is whether it was “sent to” that address.   The undisputed evidence before the Tribunal in the present case was that although the notification was addressed to the applicant at the address he had given, it was in fact sent to Dubbo Post Office because it was registered or certified mail. 

18                 Several cases in this Court in recent years have addressed a similar point (all cases against the Minister for Immigration and unreported unless otherwise stated): Nguyen [1996] 68 FCR 437; Vinod (Sackville J, 14 August 1996); Kamkar (North J, 9 December 1996); Dawai [1997] 71 FCR 379; Chun Wang (Merkel J, 13 February 1997); Santos [1997] 144 ALR 229; Tabet [1997] 75 FCR 446; Shrestha; and Rahman (Einfeld J, 1 June 1998).  There are others. 

19                  After a comprehensive examination, Justice Sackville concluded in Shrestha that all the relevant authority was that whatever actually happened to the letter, the 28 day period for the giving to the Tribunal of the application for review commenced from the deemed date of notification under regulation 5.03.  His Honour appears to have discerned unanimity that all this requires is the posting of a letter to the applicant at the relevant address.  If this is so and if these decisions affect this case, it would not be right that I hold differently even I held the contrary view.  With so many Judges involved, a change of construction should be brought about by a Full Court.  It may have been done by a Full Court (Burchett, Moore and Katz JJ) in Sook Rye Son (or Zhou Hui Ying) v Minister for Immigration and Multicultural Affairs, unreported 23 March 1999 which, as I read it, accords with the views I have formed.

20                  As I read the first instance cases, the present point was either not dealt with or was obiter.  They all seem to be concerned with the effect on the assertion that a postal article was “sent” of the non-receipt of the article.  Moreover, although presumably for that reason, I have found no consideration of the s.29 presumption in any of these cases.

21                  In Santos at 232, Justice Tamberlin said:

… s53 is designed to prevent disputes as to non-receipt of notifications.  Once the condition precedent of sending the notice to the specified address is satisfied then the notification is taken to have been received.  The subsection is not expressed to be subject to contrary proof [as to receipt].  It is conclusive in the interest of certainty as to notifications and expiry dates for review applications. 

22                  I respectfully agree.  It follows that section 53 is about deemed receipt, not deemed sending or delivery.

23                  Dawai was an unusual case where delivery from one post office to another was held to be “sending” within section 53, but Justice Moore was, I respectfully think, correct when he spoke of regulation 5.03 as concerned with deemed receipt at the address, not by the intended recipient.  His Honour appeared to relate deemed receipt to delivery (sending) when he said at 383:

Even if reg 5.03 relates to receipt at the address, then the effect of s53(3), in my opinion, is to require the receipt at the address to be treated as receipt by an applicant at the address in a case such as the present.

24                  Justice Mansfield agreed with this formulation in Tabet and I respectfully agree with their Honours.  On the other hand, I do not read Dawai as establishing any point of general principle such as to bear on the present case.  Although the facts are similar, the point raised here was not discussed.  Similarly Tabet, a special case where the letter of notification was held by Australia Post at the wrong post office for more than a month, did not deal with this point or establish any principle of broad application.  Indeed, the application to this case of these decisions as to the construction of the word “send” or “sent” would, as it seems to me respectfully, produce the quite capricious result that a letter addressed correctly but sent to the wrong address because it was inadvertently connected to or stuck behind another envelope would be deemed to have been received at the address to which it was not sent.  Cooper Brookes would suggest that a readily available alternative interpretation should be preferred.  I agree that for a document to be sent within the meaning of regulation 5.3, it does not have to arrive at its destination.  But it has to be sent to the address given.

25                  Regulation 5.03(1A) expressly makes the rest of the regulation apply to a document sent to the applicant.  When subregulation (1) then “takes” the document to be received by the applicant at the address to which it is sent 7 days later, it is in my opinion speaking of the address given by the applicant under subsection (1) or (2) of section 53, not least because the prescription in subregulation (1) is stated to be “For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations …”  If by the choice of the sender it is not sent to that address as required by section 53(3) but to a different address, the regulation has no effect or operation.

26                  In Rahman, I held in a slightly different statutory context that where there is a choice of methods of notifying an applicant of an adverse decision, the legislative intention cannot be satisfied where the method chosen would ensure or make it likely that the decision would not come to the applicant’s attention.  In the present case a deliberate decision was made to send the letter to Dubbo Post Office and not to the supplied address according to section 53(3) and regulation 5.03, thereby ensuring that it would not be sent to the therein prescribed address.

27                  Hence, one of the prerequisites to the enlivening of the presumption in section 53(3) was not met, and the presumption thus does not arise.  It follows that the rebuttable presumption in section 29 of the Acts Interpretation Act applies and it is common ground that delivery of the letter did  not take place, because of a post office error, until 4 days before the application for review was filed.

28                  The application to the Tribunal for review of the delegate’s decision was therefore in time and the Tribunal erred in law in holding that it did not have jurisdiction to review it.

29                  The application to this Court is allowed.  The decision under review of 16 January 1998 is set aside and the matter is remitted to the Tribunal for hearing on the merits.  The respondent is to pay the applicant’s costs.

Associate:

Dated:              11 May 1999