FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration & Multicultural Affairs

[1999] FCA 1147

MIGRATION – application for an order of review of a decision of the Immigration Review Tribunal (“the Tribunal”) – Tribunal held that it was not able to accept the applicant’s Application for Review of an Immigration Decision because it was not lodged within the time prescribed by the Migration Regulations 1994 (Cth) – whether the Court has jurisdiction to review the Tribunal’s decision – whether reg 4.10(1)(a)(ii) is invalid for inconsistency with s 347(1)(b)(i) of the Migration Act 1958 (Cth) – whether reg 5.03 is invalid on the ground of unreasonableness – whether s 53(4) requires one natural person to be notified at the specified address – whether reg 5.03 applies where the notification is to the wrong address - whether receipt of actual notification of the Tribunal’s decision by the applicant’s solicitors amounted to notification to the applicant.

Acts Interpretation Act 1901 (Cth)ss 22, 23, 29, 46 

Evidence Act 1995 (Cth) s 160

Migration Act 1958 (Cth) ss 5, 53, 66, 347(1), 475(1)(a), 475(1)(c), 475(2), 476, 481, 485

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3

Migration Regulations 1994 (Cth) regs 2.16(1), 4.10(1)(a)(ii), 5.03

Federal Court Rules, O 20 r 2

Jones v Dunkel (1959) 101 CLR 298, referred to

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

Tabet v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 446, discussed

Dawai v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 379 , cited

Santos v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 334, 144 ALR 229, cited

Schokker v Commissioner of Taxation  (1998) 82 FCR 113,  162 ALR 275, cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 94 ALR 11, applied

Hutchins v Commissioner of Taxation (1996) 65 FCR 269, 136 ALR 153, cited

Australian National University v Lewins (1996) 68 FCR 87, 138 ALR 1, cited

Salerno v National Crime Authority (1997) 75 FCR 133, 144 ALR 709, cited

Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381, 112 ALR 211, applied

Uddin v Minister for Immigration & Multicultural Affairs [1999] FCA 1041, cited

GUO HENG LI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N401 OF 1999

GYLES J

3 SEPTEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.                  The decision of the Immigration Review Tribunal to reject the applicant’s Application for Review of an Immigration Decision dated 16 June 1998 be set aside.

2.                  The matter be remitted to the Migration Review Tribunal to be heard and determined according to law.

3.         The respondent pay the applicant’s costs of the application.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application for an order of review of a decision of the Immigration Review Tribunal (“the IRT”), as it was then called, that it was not able to accept the applicant’s Application for Review of an Immigration Decision because it was not lodged within the time prescribed by the Migration Regulations 1994 (Cth) (“the Regulations”).

FACTS

2                     On 18 February 1998, Guo Heng Li (“the applicant”), a Chinese national, made application to remain permanently in Australia under the Change in Circumstances (Residence) Class (“the application”).

3                     Questions 127 and 129 of the application were answered as follows by the applicant:

“127    Did you receive assistance in completing this form?

            No  ………

            Yes …x… 4 Give the following details

            Person’s name

                        Oliveri Attorneys

            Their address

                        36 Hardie Street,

                        East Sydney  NSW  2010

            Migration Agent Registration number

                        …………………

…

129            If you have nominated a migration agent or other person at question 127, correspondence about your application will be sent to that person at the address provided unless you nominate a different person here.

Name and address for correspondence

            Oliveri Attorneys

            36 Hardie Street

            East Sydney  NSW  2010”

4                     The applicant had given his home address as 133 Commonwealth Street, Surry Hills, NSW 2010, and also provided a telephone number. 

5                     By letter dated 20 May 1998, and posted by registered post on 21 May at Parramatta, the Department of Immigration and Multicultural Affairs advised refusal of the application.  The letter was addressed to the applicant, care of Oliveri Attorneys, 36 Hardie Street, East Sydney, NSW 2010.

6                     On 15 June 1998, Mr Dominic Oliveri of Oliveri Attorneys sent a file note to an employed legal clerk as follows:

“Please call Li so that we can prepare appeal.  This is urgent.  Only a few days to lodge review with IRT.”

7                     By letter dated 17 June 1998, and received by the IRT on 19 June 1998, Oliveri Attorneys enclosed an Application for Review of an Immigration Decision dated 16 June 1998 signed by the applicant.  The applicant gave his address for letters as 133 Commonwealth Street, Surry Hills, NSW 2010.  The letterhead of Oliveri Attorneys gave the only address as 161 Palmer Street, East Sydney, NSW 2010.  Oliveri Attorneys are described as “Legal Practitioners & Public Notaries”.  There is no disclosure as to the principal or principals of the firm.

8                     The IRT acknowledged receipt of the application by letter dated 3 July 1998, addressed to Mr GH Li, 133 Commonwealth Street, Surry Hills, NSW 2010, with a copy addressed to D Oliveri (Oliveri Attorneys), 161 Palmer Street, East Sydney 2010.  The terms of the letter assume that the application would be considered by the IRT.

9                     By letter dated 10 September 1998 the IRT again wrote to the applicant care of D Oliveri, 161 Palmer Street, East Sydney, NSW 2010, with a copy to D Oliveri, 161 Palmer Street, East Sydney, NSW 2010, in terms which assumed that the application would be dealt with in due course.

10                  By letter dated 19 March 1999 the IRT wrote to the applicant care of Oliveri Attorneys, 161 Palmer Street, East Sydney, NSW 2010, with a copy to Mr Dominic Oliveri, Oliveri Attorneys, 161 Palmer Street, East Sydney, NSW 2010.  The relevant parts of that letter are as follows:

“I am sorry to advise you that we are of the view that we cannot accept your application to the Tribunal for review of a decision to refuse you a Change in circumstance (Residence) visa subclass 806.

Your application to the Tribunal should have been lodged within a 21 day time limit.  The letter from the Department informing you of the decision was dated 20 May 1998.  The letter was posted to you and 7 days are allowed for persons to receive letters posted to an address in Australia.  On this basis, I calculate that the last day on which you could have lodged a valid application for review was 17 June 1998.  Your application for review was not received at the Tribunal until 19 June 1998.

…”

11                  On 1 April 1999 the IRT responded to representations by the applicant’s solicitor and said (inter alia):

“… I will firstly address your claim that the letter of the Department dated 20 May 1998 states that the applicant has 28 days to lodge an application for review and a further 7 days to allow for postage.  The letter from the Department clearly states that if you decide to lodge a review application you must do so within 28 days of the date of the letter.  This consists of 21 days for the time limit and 7 days for postage.  Regulation 4.10 sets out the time for lodgement of applications for review by the Tribunal.  The prescribed time in which to lodge an application for review of an onshore visa refusal made on or after 1 July 1997, where the applicant is not in immigration detention, is 21 days after notification of the decision by the Department (paragraph 4.10(1)(a)(ii)).  Regulation 5.03 deals with the time of receipt of documents.  Paragraph 5.03(1)(a) states that if a document is sent from a place in Australia to an address in Australia, the document is taken to be received 7 days after the date of the document.  I have enclosed a copy of the relevant legislation for your information.

…”

12                  The solicitors for the applicant sought further reconsideration of the matter, particularly drawing attention, inter alia, to the failure of the IRT to raise the point for approximately nine months, during which time the applicant was given to believe that his application was to be considered.  By letter dated 9 April 1999 the IRT declined to change its decision.

13                  The application to this Court for an order of review was filed on 7 May 1999.  It was not in dispute that the relevant provisions of the Migration Act 1958 (Cth) (“the Act”) and the Regulations for the purposes of this application were those in force at the time of the IRT’s decision to reject the application.

14                  No evidence was given by the applicant or his solicitor.  Counsel for the respondent made clear during the course of the hearing that he would rely upon the absence of that evidence and ask me to draw the inferences envisaged by Jones v Dunkel (1959) 101 CLR 298.

JURISDICTION

15                  The respondent filed a Notice of Objection to Competency in the following terms:

“…

1.                  The jurisdiction of the Court is limited, by section 485 of the Migration Act 1958 (“Act”) to review of judicially-reviewable decisions as defined in sections 474 and 475 of the Act;

2.                  Section 347(1)(b) of the Act provides that the Immigration Review Tribunal is prohibited from accepting applications for review which are not lodged within the time prescribed by the regulations;

3.                  The rejection of the applicant’s application by the Immigration Review Tribunal does not constitute a “judicially-reviewable decision” or any “decision” by the Minister within the meaning of sections 474 and 475 of the Act.

…”

16                  No separate submissions by the respondent were directed to the issue of competency. However, as the point was not abandoned, and goes to jurisdiction, I must deal with it. 

17                  The applicant, in written submissions, put that the decision to not consider the application was, in substance, a rejection of the application, that that was a decision of the IRT which related to visas and was thus within s 475(1)(c) of the Act.  As it was not excluded by s 475(2) it was thus a judicially-reviewable decision.  If this is correct, s 485 would have no application.

18                  The alternative view, reflected in the respondent’s Notice of Objection to Competency, is that the rejection by the IRT of the application was not a decision under the Act or the Regulations, but was simply a refusal to exercise jurisdiction because of the perceived absence of a jurisdictional fact, the ascertainment of which is not committed by the legislation to the IRT.  On this view, if the IRT were wrong, then correction would be by way of an order in the nature of mandamus and s 485 would not permit this Court to make such an order.

19                  Initially, neither party referred me to any authority.  After reserving judgment, I became aware of the recent decision of Einfeld J in Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 613.  In that case, the Refugee Review Tribunal (“the RRT”) had determined that it did not have jurisdiction to grant a protection visa because the application was out of time.  The application before this Court succeeded, the decision to decline jurisdiction was set aside and the matter remitted to the RRT for hearing on the merits.  I cannot distinguish between the RRT and the IRT for this purpose.  My difficulty with this decision is that if the applicant’s argument is correct, the consequence, in my opinion, is not that I can find the facts for myself and order the IRT to hear and determine the application itself on the merits.  That would be to grant the equivalent of prerogative relief.  The only decision which can be in issue before me is the decision to reject the application, based upon failure to comply with the statutory time limit.  In reviewing that decision, I am bound by s 476.  If I were to be persuaded of error, I would normally return the matter to the IRT to again consider its decision rejecting the application for review.  There is no indication that the matter of jurisdiction was raised by the parties or considered by Einfeld J. 

20                  The applicant has now referred me to Tabet v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 446, in which it was accepted by the parties that what was called the “review refusal decision” was judicially reviewable under s 475(1)(c) and was not within the exceptions in s 475(2).  Mansfield J summarily dismissed a claim that the decision had been in error, under O 20 r 2 of the Federal Court Rules.  His Honour referred to two earlier decisions to similar effect, viz, Dawai v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 379 and Santos v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 334.  The question of jurisdiction was not discussed in any of these cases.

21                  In these circumstances, I must give consideration to the issue on its merits before returning to consider the effect of these decisions.  The questions are whether the rejection of the application was a “decision” at all in the relevant sense, and, if so, whether it was a decision “under this Act, or the regulations, relating to visas”.  These questions raise issues similar to those which arise under s 3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

22                  The relevant authorities in that connection have recently been analysed by RD Nicholson J in Schokker v Commissioner of Taxation (1998) 82 FCR 113 (1997-8) and I need not repeat that exercise.  I am satisfied that what occurred here was a decision by the IRT (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321).  However, I have grave doubts as to whether it was a decision under the Act or the regulations relating to visas in the relevant sense.

23                  Most guidance is to be obtained from three decisions of the Full Court of this Court – Hutchins v Commissioner of Taxation (1996) 65 FCR 269, Australian National University v Lewins (1996) 68 FCR 87 and Salerno v National Crime Authority (1997) 75 FCR 133.  The question whether the decision was authorised only in a general way on the one hand, or was expressly or impliedly required by the enactment or was given force or effect to by the enactment on the other, is a matter to be determined by the construction of Division 3 of Part 5 of the Act in the light of that Part as a whole, Division 3 of Part 2 of the Act dealing with visas, and Part 8 of the Act dealing with the review of decisions by this Court. 

24                  The first point to note is that the decision in question is not referred to in the Act, whilst a number of other decisions are referred to.  It is a consequence of the provisions of s 347(1)(b) providing a time limit within which an application for review must be made.  The Act does not provide that this time limit is to be a time limit as found by the IRT or that it depends upon the satisfaction of the IRT.  It is a condition precedent to the exercise of jurisdiction, but the decision as to whether the condition precedent has been fulfilled is not committed by the legislation to the IRT.  In practice, the IRT is called upon to consider whether the condition precedent to jurisdiction has been established and, in that general sense, the decision is provided for by the legislation.  Division 2 of Part 8, it seems to me, is most naturally construed as granting a jurisdiction in the Court to review substantive decisions made by the IRT within its jurisdiction and expressly provided for by the legislation.  It is unlikely that Parliament would have contemplated relief of the type granted on the former prerogative writs pursuant to this Division.  The kind of review contemplated, for example, by s 481, and the terms of s 485, support this conclusion.

25                  It is certainly arguable that whilst the IRT declining jurisdiction may affect the applicant for a visa, and in that sense relate to visas, it is not the kind of substantive decision in relation to visas which the legislation had in contemplation in connection with the review by this Court of decisions of the IRT or other decisions under the Act for the purposes of       s 475(1)(c).  If this be correct, then it was not a decision of the IRT within the meaning of      s 475(1)(a) and it was not the IRT operating pursuant to Division 4 of Part 5 in the formal sense.  It was something done by the officers of the IRT on its behalf, but not sitting as the tribunal.  On this basis, the appropriate relief to be granted, if the applicant succeeded in establishing error, would be an order in the nature of mandamus which s 485 of the Act prevents this Court from making in these circumstances.  Any application would need to be made to the High Court of Australia.

26                  As presently advised, I would tend to the view that the decision was not “under this Act, or the regulations”.  However, it seems clear that, for some years, proceedings of this type have been entertained by the various judges of the Court without any issue of jurisdiction apparently having been raised by the Minister or by the judges who heard them.  The point is not easy, and views about it could legitimately differ.  I cannot say that the assumption of jurisdiction has been plainly wrong.  In these circumstances, it seems to me that my proper course is to follow the established practice and overrule the objection to competency.

ALLEGED ERRORS

27                  The basis of the IRT decision is found in the letters of 19 March and 1 April, the significant parts of which have been set out above.  On its face, this basis depends upon the validity of each of reg 4.10(1)(a)(ii) and reg 5.03.  The applicant submits that each is invalid, and that the IRT erred in law in applying them.

28                  At the relevant time, s 347(1) of the Act provided as follows:

“Application for review by Immigration Review Tribunal

347(1)   An application for review of an IRT-reviewable decision must:

(a)               be made in the approved form;  and

(b)               be given to the Tribunal within the prescribed period, being a period ending not later than:

(i)                 if the primary decision is covered by paragraph (a), (b), (c) or (d) of the definition of Part 5 reviewable decision – 28 days after the notification of the IRT-reviewable decision;  or

(ii)               if the primary decision is covered by paragraph (e), (f), (g) or (h) of that definition – 70 days after the notification of the IRT-reviewable decision;  and

(c)               be accompanied by the prescribed fee (if any).

(2)               …”

Regulation 4.10(1)(a)(ii)

29                  At the relevant time, reg 4.10(1)(a)(ii) of the Regulations provided as follows:

“Time for lodgment of application for review by the Tribunal

4.10(1)   Subject to subregulation (2), the period within which an application for review of an IRT-reviewable decision must be given to the Tribunal is:

(a)               in the case of a primary decision of a kind mentioned in paragraph (a) of the definition of “Part 5 reviewable decision” in section 337 of the Act:

…

(ii)               if the IRT-reviewable decision was made on or after 1 July 1997 – 21 days after the notification of that decision; …”

30                  The applicant submits that reg 4.10(1)(a)(ii) is inconsistent with s 347(1)(b)(i) of the Act and is therefore ultra vires.  It is submitted that the prescribed period referred to in s 347(1)(b) is that prescribed by sub-paragraph (i), namely, 28 days after notification. 

31                  In my opinion, this submission is without substance.  “Prescribed” is defined in s 5 of the Act to mean prescribed by the Regulations and there is no reason to depart from that meaning.

Regulation 5.03

32                  At the relevant time, reg 5.03 was in the following terms:

“(1A)   This regulation applies to a document sent by the Minister, a Tribunal or review officer to a person in that person’s capacity as:

(a)               an applicant, of any kind, under the Act or these regulations;  or

(b)               the holder, or the former holder, of a visa.

(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 person to whom it was sent 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

(b)               if the document is sent from:

(i)                 a place outside Australia to an address in Australia;  or

(ii)               a place in Australia to an address outside Australia;  or

(iii)             a place outside Australia to an address outside Australia;

21 days after the date of the document.

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

33                  The purpose of the exercise is to fix the date of notification of the decision so as to calculate the prescribed period of 21 days.  The applicant points out that if a document is sent on the seventh day after it is dated (pursuant to subregulation (2)), it is taken to have been received on the same day that it is sent to any address in Australia.  It can be taken to be a matter of both common knowledge and common sense that Australian postal services are not instantaneous.  Section 29 of the Acts Interpretation Act 1901 (Cth) deems service to be in the ordinary course of post.  Furthermore, s 160 of the Evidence Act 1995 (Cth) gives rise to a presumption, subject to contrary proof, that delivery will be the fourth working day after posting.  It is submitted that the result in the example given is so absurd that the regulation is invalid. 

34                  The principles applicable to this argument are, for present purposes, sufficiently set out in Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381.  Lockhart J, at 384, said:

“Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality;  but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws.”

See also the joint judgment of Beaumont and Hill JJ at 399-401.

35                  The conclusion in that case was that the finding of the trial judge that the relevant provisions of the plan there in question were capricious and irrational, such that no reasonable person could ever have devised it, and that the regulation was invalid on that account, was justified.

36                 As will appear later, I think there is substance in the applicant’s argument.  However, exploration of alternatives revealed that, when properly analysed, reg 5.03 has no application.

ALTERNATIVE ARGUMENTS

37                 The Minister submitted that even if reg 5.03 was invalid, this would not affect the result because I should find that notification had actually occurred no later than the deemed notification pursuant to the regulation.  It is clear that the applicant received the notification no later than 16 June 1998, when he signed the Application for Review of an Immigration Decision.  Counsel for the respondent asked me to find that Oliveri Attorneys received the notification no later than the deemed date of 27 May.  I accept this submission.  I have found that the document was posted on 21 May at Parramatta, to an address other than the address of Oliveri Attorneys in June.  Nonetheless, it is plain that by 15 June they had received it.  I must infer that, notwithstanding an actual (although not notified) change of address, the document had been forwarded to the new address.  In the absence of any evidence from anybody on behalf of Oliveri Attorneys, I can the more readily conclude that the notification was received no later than the date deemed by the operation of reg 5.03. 

38                 I do not, however, take the further step of inferring that it was passed on to the applicant by that date.  I must keep in mind the purpose for considering this issue.  This issue being argued is whether I can avoid sending the matter back to the IRT as it came to the clearly right result for the wrong reasons.  I am not trying an issue of fact in the ordinary way.  The reasoning behind Jones v Dunkel (supra) may have some application in circumstances such as this – indeed, I have applied this reasoning in relation to the solicitors.  However, in the case of the applicant, the memorandum from Mr Oliveri to the law clerk of 15 June seems to me to indicate that the client may not have received the notification prior to 15 June.  That issue was never considered by the IRT because of the way it approached the question.  The issue is not sufficiently clear for me to exclude the IRT’s decision-making function on this account.

39                 Counsel for the respondent then submitted that, in the circumstances of the case, delivery to Oliveri Attorneys at their former address was notification to the applicant because of the answers to questions 127 and 129 of the application, together with the effect of subsections 53(4), (5) and (6) of the Act.  In order that this submission can be understood, I set out the whole of s 53:

“Communication of Minister with applicant

            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 subsection (1) or (2), the notification is taken to have been received by the applicant even if it was not received.

            (4)        An applicant may tell the Minister that a specified person at a specified address may be given notifications for the applicant about the application.

(5)        Subject to the regulations, only one person may be specified, under subsection (4), in relation to an applicant at any particular time.

(6)        If the Minister has been given the name and address of a person under subsection (4), the Minister must give notifications to the applicant by giving them to that person at that address and a notification so given is taken to have been received by the applicant.

(7)        Subsection (6) does not prevent the Minister from communicating with the applicant, provided that the person specified under subsection (4) is notified of that communication.

(8)        If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.”

40                  The issue depends on whether the answers to the questions in the application bring     s 53(4) into play.  In my opinion, that subsection, and subsection (5), require that the specified person be a natural person and only one natural person, notwithstanding any presumptions implied by ss 22 and 23 of the Acts Interpretation Act 1901 (Cth).  To nominate “Oliveri Attorneys” does not, in my opinion, specify one natural person.  This means that the respondent cannot rely upon the deeming effect of s 53(6).

41                  It was then put that s 66 of the Act requires the Minister to notify the applicant of a decision “in the prescribed way”.  The prescribed way is contained in reg 2.16(1), including:

“… (c) by sending a notice of the decision to, or leaving a notice of the decision at:

(i)                 the last address given to the Minister by the applicant under subsection 53(4) of the Act; …”

It was submitted that the last address was Oliveri Attorneys, 36 Hardie Street, East Sydney, NSW 2010, and that notice of the decision was sent to that address.

42                  I am not quite clear whether it was being submitted that, independently of s 53, this would deem the applicant to have received such a notice, notwithstanding the fact that the notice was not sent to the specified person, as required by s 53(4).  If this was being submitted, I disagree.  In my opinion, the effect of s 53(4) cannot be segmented in this way, that is, to see it as providing an address for service shorn of a requirement that a natural person be specified as the recipient at the address.  In any event, it seems to me to be clear that s 53(6) will only have effect if s 53(4) were complied with.

43                  In my opinion, it follows that the respondent was bound to notify the applicant of the decision at the residential address which he had provided.  This was not done.  Therefore, the receipt of the notification by Oliveri Attorneys on or before 27 May did not amount to notification to the applicant.  Time would only begin to run after the date of actual receipt of the notification by the applicant. I thus conclude that this alternative argument by the respondent is no answer in this case, and, more importantly, points up that the IRT implicitly erred in law in regarding posting to Oliveri Attorneys as being notification to the applicant.

44                  This latter conclusion focuses attention upon the work which reg 5.03 is designed to do.  If it fixes a time of receipt, then it would make no difference in the present case.  All that it would do would be to deem notification to have been received on 27 May by the addressee, not the applicant.  I have found that to be so in any event.  In my opinion, reg 5.03 is so limited in its application to the present circumstances.  It does not, when construed against the background of the Act, enter upon the question as to when delivery at a particular address is in fact delivery to the applicant. Rather, it concentrates upon the time of receipt of the document at the particular address. The effect of delivery at that address is another issue, depending, inter alia, upon s 53.  If that be correct, the IRT was in error in utilising reg 5.03 at all, valid or not, when receipt by Oliveri Attorneys at 36 Hardie Street, East Sydney, NSW 2010, was irrelevant to the issue before it.  In cases such as Dawai (supra) and Santos (supra) the assumption made when considering the effect of reg 5.03 was that the notification was sent to the correct address for the purposes of s 53.  This was not the case here.

VALIDITY OF REG 5.03

45                  These conclusions mean that I need not decide the validity of reg 5.03 in order to dispose of the case.  As that question has consequences well beyond this case, I will refrain from making it a ground of decision.  However, as it was argued at the forefront of the applicant’s case, and as the matter may go further, I should express my views as to it.

46                  In my opinion, the description of the legislation in Austral Fisheries (see paragraphs 34 and 35) is apt to describe the result of applying subregulations (1)(a) and (2) of reg 5.03.  The result is not simply the possibility of some illogical or strange result depending upon the circumstances.  It is the certainty of an absurd result if the notification is posted on the seventh day, as the regulation expressly contemplates.  The inevitable result of that state of facts is that the applicant will simply not receive the prescribed number of days in which to make an application for review as required by s 347(1) and reg 4.10.  Thus, another way of analysing the matter is to say that the delegated legislation is inconsistent with the legislation, and in particular with s 347(1).

47                 Full weight can be given to the need for certainty, and to the fact that, because no system of notification is perfect, injustices may occur whenever deeming provisions are employed.  I also appreciate that in many cases reg 5.03 may actually provide more time to apply for review than would (for example) notification by the ordinary course of post.  However, the question is not one of convenience for either the executive or an applicant. I cannot accept that in the present context Parliament would intend that delegated legislation may validly contemplate the certainty that the Minister may correctly follows its provisions, yet the applicant will not receive the benefit of the prescribed statutory period of notice.  This is particularly so in view of the fact that the period is incapable of extension no matter what the circumstances.

48                 It was argued by the respondent that if I should come to this conclusion then reg 5.03 is capable of severance, and I was referred to s 46 of the Acts Interpretation Act 1901 (Cth).  I cannot see any basis upon which the regulation can be severed, although I am only dealing with its effect in relation to s 347(1). The fact that a capricious or absurd result would not occur in this case, as the posting took place well before the seventh day, is not, in my opinion, relevant to the argument as to invalidity, and does not enable severance.

49                 I was not referred to any authority in which this point has been considered.  Since argument took place, Hely J has decided Uddin v Minister for Immigration & Multicultural Affairs [1999] FCA 1041.  It is apparent from that decision, and from the cases I considered in relation to jurisdiction and the authorities referred to in those decisions, that the operation of reg 5.03 has been considered by a number of judges of the Court, and considered in circumstances where, on the facts, capricious results may have occurred.  So far as I can see, none of them deal with the precise situation before me, and none of them consider the precise argument that has been put here.  I am, however, fortified in the view I have formed by the reasoning of Hely J in Uddin.

50                  In my opinion, reg 5.03 is invalid, at least insofar as it operates in relation to the time limit imposed by s 347(1).

CONCLUSION

51                  I have identified errors of law which vitiate the decision of the IRT.  I have considered the facts in order to determine whether the errors of law were academic, but have concluded that they were not.  Therefore, I should return the matter to the Migration Review Tribunal for it to again consider the matter in accordance with the law as I have declared it to be. 

52                  The effect of this is that the question as to whether or not the application was filed within the prescribed period is to be determined by the Migration Review Tribunal by taking as the date of receipt of notification the date upon which this applicant actually received the notification.  I have considered the facts on the evidence before me for the limited purpose which I have outlined.  It is a matter for the Migration Review Tribunal to now consider for itself when the applicant actually first received the notification on such materials and basis as it sees fit.

53                  For the sake of completeness, I should note that the applicant put no argument based upon estoppel and no argument based upon the fact that posting was by registered post.  In view of my decision, there is no need to consider either issue further.

54                  I therefore order that the IRT decision to reject the applicant’s Application for Review of an Immigration Decision dated 16 June 1998 be set aside, and that the matter be remitted to the Migration Review Tribunal to be heard and determined according to law.  I order that the respondent pay the applicant’s costs.

Associate:

Dated:              3 September 1999