FEDERAL COURT OF AUSTRALIA

Naheem v Minister for Immigration & Multicultural Affairs [1999] FCA 1360

IMMIGRATION – Refugees – Refugee Review Tribunal – Application for review of decision refusing protection visa – Application for review to be lodged within prescribed period – Prescribed period a number of days after notification of Minister’s decision – Legislation deeming notification to have been received seven days after date of document – Whether Tribunal erred in applying deeming provision and thus treating application as lodged out of time – Name on envelope containing notification not applicant’s full name – Whether notification sent “to the applicant” if full name not used – Tribunal assumed letter directed to applicant – Whether no evidence to support Tribunal’s decision – Non‑existent fact.

Migration Act 1958 ss 53(3), 66, 412(1), 414(1), 476(1)(g), (4)(b)

Migration Regulations regs 2.16(1), 5.03(1)

Santos v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 334 applied

Dawai v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 379 applied

Shrestha v Minister for Immigration and Multicultural Affairs [1997] FCA 1051 applied

Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 applied

Tjandra v Minister for Immigration and Multicultural Affairs (1998) 50 ALD 454 applied

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 applied

NAINA MOHAMED SAIBO MOHAMED NAHEEM v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 644 OF 1998

SUNDBERG J

1 OCTOBER 1999

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’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

BACKGROUND

1                     The applicant is a 34 year old Tamil citizen of Sri Lanka who arrived in Australia on 25 December 1995 on a visitor visa.  On 30 June 1998 he lodged an application for a protection visa.  This application was refused by a delegate of the respondent on 5 August 1998.  On 14 September 1998 the applicant applied to the Refugee Review Tribunal for review of that decision.  On 16 November 1998 the Tribunal determined that it did not have jurisdiction to review the Minister’s decision on the ground that the review application had not been received within the prescribed period.  The applicant now applies to the Court for a review of the Tribunal’s decision.

LEGISLATION

2                     Section 414 (1) of the Migration Act 1958 (“the Act”) provides that “if a valid application is made under s 412 for review of an RRT-reviewable decision, the Tribunal must review the decision”.  According to s 412 of the Act:

“(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 ….”

For the purposes of s 412(1)(b), reg 4.31(2)(b) of the Migration Regulations (“the Regulations”) prescribes the period of 28 days from “the day on which the applicant is notified of the decision”.  The provisions relating to notification are found in ss 53 and 66 of the Act, and in regs 2.16 and 5.03.  Section 66(1) provides that “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”. Under reg 2.16(1):

“For the purposes of subsection 66(1) of the Act (dealing with giving notice of decisions), 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:

                        …

(ii)        …the last address given to the Minister by the applicant under subsection 53(1) or (2) of the Act.”

Section 53(3) provides that:

“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.”

Regulation 5.03 provides that:

“(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 …

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

THE TRIBUNAL’S DECISION

3                     The Tribunal stated that the effect of the legislation is that:

“if the notification of a decision to refuse a protection visa was sent within 7 days to the correct address, the 28 day period within which a review application must be lodged with the Tribunal commences 7 days after the date of the notification letter.”

The Tribunal then set out its reasoning as follows:

“The letter advising the applicant of the delegate’s decision was dated 5 August 1998.  The notification was correctly addressed and its contents complied with the legislative requirements.  The Department has advised that it was sent by certified mail to the applicant on 5 August 1998.  The applicant is therefore taken to have received the letter on 12 August 1998.  Therefore, the 28 day period within which the review application must be lodged ended on 9 September 1998.  The application for review was not received by the Tribunal until 14 September 1998, which is after the prescribed period had expired.”

The Tribunal found that since the review application had been received outside the prescribed period, it was not a valid application, and the Tribunal therefore had no jurisdiction to review the delegate’s decision.

GROUNDS OF REVIEW

Error of law – s476(1)(e)

4                     Only one of the grounds of review in the Application was pursued at the hearing.  This was that the Tribunal had incorrectly interpreted the Act and the Regulations.  This ground is expressed in the Application as follows:

“The Tribunal incorrectly interpreted the criteria specified in s 412(1)(b) of the Act and Rule 4.31 of the Migration Regulations in that:

(i)                 the Tribunal wrongly construed that if the notification was correctly addressed and sent within seven days after the date of the letter, it is taken to have been received seven days after that date.

(ii)       The provisions of the Act and Regulations were treated that even if the notification was even in fact not received, it must be taken to have been received by the Applicant seven days after the date of the notice.”

There is no substance to this ground.  On the evidence before it, the Tribunal could only have decided as it did.  The Tribunal wrote to the applicant on 1 October 1998 informing him that his application for review appeared to have been received outside the prescribed period, and that, if that were the case, the Tribunal would have no jurisdiction to entertain the review.  The letter invited the applicant to make submissions on this issue within fourteen days.  At the time of making the decision, 16 November 1998, the Tribunal had not received any submissions on this point.

5                     It is clear from s 53 (3) of the Act and reg 5.03 that if a notification is sent to the applicant at the correct address, the notification is taken to have been received by the applicant seven days after the date of the notification letter.  This will be the case even if the notification is not in fact received.  The cases make that quite clear.  In Santos v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 334 the applicant was held to have received the notification even though it was returned to the Department unopened and stamped “return to sender” and “unknown at address”.  Tamberlin J said, at 337:

“s 53 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.  It is conclusive in the interest of certainty as to notifications and expiry dates for review applications.”

This approach is confirmed by other cases.  See Dawai v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 379, Shrestha v Minister for Immigration and Multicultural Affairs [1997] FCA 1051, Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 and Tjandra v Minister for Immigration and Multicultural Affairs (1998) 50 ALD 454.  In Dawai at 383 Moore J expressed the view that a notification sent in compliance with s 53(3) was to be taken to have been received by the applicant at the last notified address and not merely to have been received at that address.  The position is in my view the same under reg 5.03(1) – “taken to be received by the person to whom it was sent …”.

6                     There is no doubt that the Tribunal correctly interpreted the legislation when deciding the issue on the evidence before it.  However, the case was conducted before me on the basis that the parties could introduce new evidence and were at liberty to dispute the facts on which the Tribunal based its decision.  Both sides submitted affidavit evidence, and the applicant was cross‑examined.  It is clear, however, that upon review under s 476(1)(e) the Court is not entitled to re-examine the facts on which the Tribunal based its decision.  The question for the Court is whether, on the evidence before the Tribunal, the Tribunal’s decision involved an error of law.  In the course of argument, the applicant applied to amend his Application to include an additional ground of review, namely that there was no evidence to justify the Tribunal’s decision because it was based upon the existence of a fact which did not exist.  The applicant sought to argue that the Tribunal based its decision upon the fact that the envelope containing the notification bore the applicant’s correct name, whereas this was not the case.  Having regard to the way in which the first ground of review was argued, with both parties treating themselves as at liberty to dispute or supplement the evidence before the Tribunal, it was thought that this additional ground would add nothing to the first ground, and the application to amend was not pursued.  Since the first ground of review should not have involved the introduction of facts that were not before the Tribunal, it would in retrospect have been more satisfactory to have allowed the amendment.  The evidence about the envelope would then have been relevant to the new ground.  I therefore propose to allow the amendment to add the additional ground of review, and I will take into account so much of the fresh evidence as is relevant to this ground.  Cf Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220‑224.  I do this without calling on the parties to reargue the matter, as the applicant’s counsel agreed that everything he would have submitted on the additional ground had been put on the first ground, and the respondent neither supported nor opposed the amendment.

No evidence – decision based on non-existent fact – s 476(1)(g), s 476(4)(b)

7                     The applicant submitted that the notification of refusal of a protection visa, while sent to the correct address, did not bear his correct name.  The applicant’s evidence was that his full name is Naina Mohamed Saibo Mohamed Naheem.  He stated that “Naina Mohamed Saibo” is his father’s name and “Mohamed Naheem” is the name he was given at birth.  There was evidence that in Sri Lanka the father’s name is not the equivalent of a “surname” in Australia, and that the name given at birth is the name by which a person is generally addressed.  The applicant confirmed that the name by which he is known, and by which he identifies himself, is “Naheem” or “Mohamed Naheem”.

8                     The applicant’s name appears in a variety of different forms on various official documents.  The receipt issued by the Department for his application for a protection visa records the applicant’s name as “Naina Mohamed Saibo Mohamed Naheem”.  On the first page of Part B of the application for a protection visa, the applicant’s name appears in his handwriting as “Mohamed Naheem Naina/ Mohamed Saibo”, where the slash marks a line break.  On the first page of Part C of the application for a protection visa, “Naina Mohamed Saibo” appears beside the form’s printed word “Surname”, and “Mohamed Naheem” appears on the following line, next to the words “Given Names”.  Again the writing is the applicant’s.  A letter from the Department acknowledging receipt of the application for a protection visa is addressed to “Mr Naina Mohammed Saibo Md. Naheem”, and begins “Dear Mr Naheem”.

9                     A bridging visa issued by the Department on 8 August 1997 consists of a printed sticker which gives the applicant’s name as “Naina Mohamed Saibo Mohamed N”.  The last component of the name is abbreviated for want of space in which to render it in full.  This sticker is accompanied by a picture of the applicant, above which his “Name” appears in handwriting as “Naina Mohamed Saibo/ Mohamed Naheem” where the slash indicates a line break.  Another bridging visa issued in 1998 consists of a sticker identical to that in the first bridging visa, accompanied by another photograph of the applicant.  However, this time the applicant’s name is written next to the photograph as “NAINA MOHAMED SAIBO, Mohamed”. On the applications for bridging visas the applicant’s “Family name” appears in his handwriting as “Mohamed Saibo”, and his “Given names” as “Mohamed Naheem”.  On each of the forms the applicant was required to sign upon receiving a bridging visa, he has written his name above his signature as “Mohamed Naheem” or “Naina Mohamed Saibo Mohamed Naheem”.  However, at the top of each form, next to the printed word “Name”, are the words “NAINA MOHAMED SAIBO, Mohamed”.  The applicant states that in each case the name at the top of the form was written by an immigration official.

10                  The applicant’s application to the Refugee Review Tribunal for review of the delegate’s decision is in his own writing and gives his “Full name” as “Naina Mohamed Saibo/Mohamed Naheem” where the slash indicates a line break.  His “Family Name” is given as “Mohamed Naheem”, and his “Given Names” as “Naina Mohamed Saibo”.  Correspondence from the Refugee Review Tribunal to the applicant is addressed to “Mr Mohamed Naheem”.  On all documents signed by the applicant, his signature is the same and he said it is “Naheem”.  The Department’s “Protection Visa Decision Record” gives the applicant’s name as “Family name: Naina Mohamed Saibo” and “Given names: Mohamed Naheem”.  The letter notifying the applicant of the decision was addressed to “Mr Naina Mohamed Saibo”.  It was sent to him by registered post in an envelope addressed by hand to “Mr Mohamed N. N. Mohamed Saibo”.

11                  The applicant’s evidence was that he was not at home when the postal authorities attempted to deliver the Department’s notification letter, and a card was left requesting that it be collected from the post office.  At that time the applicant was living in an apartment with three other Sri Lankans.  Friends of the applicant and of the three other occupants used the apartment as a postal address.  When cards were left requiring registered mail to be collected from the post office, whoever was free and able to attend the post office during its working hours collected them.  The applicant said he went to the post office and collected the letter from the Department soon after 7 August.  According to the affidavit of Angela Bonadio, the post office manager, the letter was collected and signed for on 7 August.  The post office “Receipt for Signature on Delivery Items”, exhibited to the affidavit, shows that the applicant signed for the letter on 7 August.  The applicant said he did not identify the letter as being for him as the name “Naheem” did not appear on it.  He assumed that it belonged to one of the people he lived with, or one of the others who used the apartment as a postal address.  His evidence was that he put the letter on the kitchen table.  Over the next day or so he asked the other people living in the apartment whether it was for them.  It was not, and between three and five days after collecting the envelope the applicant decided to open it, and discovered that the notification it contained was for him.

12                  The applicant submitted that s 66 requires the Minister to “notify the applicant” of a decision to refuse to grant a protection visa, and if the name to which the notification is sent is not the applicant’s name, then notification cannot be said to have been sent to the applicant.  Regulation 5.03 would not rectify this problem, as it merely provides that “a document is taken to have been received by the person to whom it was sent” seven days after the date of the document.  Since the notification was not sent to the applicant, he cannot be deemed to have received it seven days later, and the time within which he had to apply for a review of the delegate’s decision did not begin to run.  The applicant therefore submits that the Tribunal based its decision on the fact that the notification bore his correct name, whereas this was not the case.  As a result, there was no evidence to justify the making of the Tribunal’s decision, as the Tribunal based the decision on the existence of a particular fact, and that fact did not exist.

13                  The respondent submitted that the fact that the envelope containing the notification letter did not bear all the applicant’s names in full did not prevent the envelope from being addressed “to the applicant”.  The respondent submitted that the name by which the applicant was primarily addressed was in fact “Saibo”.  Further, the respondent submitted that the name on the envelope containing the notification, “Mr Mohamed N. N. Mohamed Saibo”, was sufficiently similar to the applicant’s own name that the applicant could not reasonably have formed the conclusion that it was not addressed to him.  Alternatively, on the basis of his previous dealings with the Department, in which the Department had changed the order of his names and abbreviated some of them, the applicant would be aware that the envelope was meant to be addressed to him.  The respondent submitted that the applicant opened the letter either immediately upon receipt or, in accordance with the applicant’s own evidence, around 12 August 1998.  Since the applicant did not lodge the application for review by the Tribunal until 14 September 1998, on either version of events the application was lodged outside the statutory time limit.  The Tribunal therefore had no jurisdiction to entertain the application.

14                  The ground of review provided by s 476(1)(g) is that “there was no evidence or other material to justify the making of the decision”.  Section 476(4) provides in part that

“The ground specified in par (1)(g) is not to be taken to have been made out unless:

…

(b)               the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

The decision of the Full Court in Curragh Queensland Mining establishes a number of propositions applicable to s 5(1)(h) and (3)(b) of the Administrative Decisions (Judicial Review) Act 1977.  Those provisions are in substantially the same terms as s 476(1)(g) and (4)(b) of the Act, and I will render the Curragh propositions in language appropriate to the provisions in question here:

·               If the existence of a particular fact is critical to the making of a decision, the decision is based on the existence of that fact

·               Section 476(4)(b) does not require the identification of a single particular fact that is the foundation of the decision; the decision will be based upon the existence of each particular fact that is critical to its making

·               Evidence is admissible to establish that a particular fact did not exist, and the Court is not restricted to the material that was before the decision‑maker

·               The applicant has the onus of proving the non‑existence of the particular fact.

15                  Section 66(1) requires the Minister to “notify the applicant” of the decision in the prescribed way.  The prescribed way of notifying the applicant is by sending a notice of the decision to, or leaving a notice of the decision at, the last address given by the applicant to the Minister.  Section 53(3) speaks of sending a notification “to the applicant” at the last given address.  Regulation 5.03(1) deems a document to have been received by the person “to whom it was sent”.  While s 66(1) does not expressly require the notification to be directed to the applicant, as opposed to being sent to or left at the last address of the applicant, it is implicit in the sub‑section, at least in the case of a “sent” notification, that it is to be directed to the applicant.  The most common mode of sending a notification to an applicant will be by mail, and that involves addressing an envelope which contains the notification.  While only implicit in s 66(1), this requirement is express in s 53(3), which speaks of sending a notification to the applicant at the last address.  Regulation 5.03 proceeds on the same basis.  It was thus critical to the making of the Tribunal’s decision that the review application was not received within the prescribed period that the notification was directed to the applicant at the last address.  The Tribunal’s decision was thus based on the existence of each of those facts (direction and address).  In the central part of its reasons for decision the Tribunal recorded that the Department had advised that the notification “was sent by certified mail to the applicant on 5 August 1998” and that the letter was correctly addressed.

16                  The evidence in support of the non‑existence of the particular fact (ie that the letter was not sent to the applicant) was that the applicant’s full name is Naina Mohamed Saibo Mohamed Naheem, and the envelope was not addressed to him, but to Mohamed N.N. Mohamed Saibo.  If that were all that appeared, there would be much to be said for the view that the notification had not been sent “to the applicant”.  But there is more.  As noted earlier, the applicant’s name, as recorded in the Departmental file, varies from document to document and within documents.  The key document for present purposes is the application for a protection visa.  The notification letter was the Department’s response to that application.  In part B of the application the applicant describes himself as Mohamed Naheem Naina Mohamed Saibo.  In part C he states his given names as Mohamed Naheem, and his surname as Naina Mohamed Saibo.  The person who wrote the name on the envelope doubtless took it from one or other of these documents.  If from the first, the five parts of the name were recorded in the order in which they had been written by the applicant, though two of them were abbreviated to “N.N.”.  If the name was taken from the second document, its components were recorded given name first followed by surname, with the same two letters abbreviated – Mohamed N N Mohamed Saibo.

17                  In determining whether an envelope bearing a name has been sent to a person, it is in my view relevant to take into account whether the person recognises from the name that the envelope is intended for him.  The applicant says the name on the envelope led him to conclude that the letter was intended for someone else.  I do not accept the applicant’s evidence that he did not realise the letter was intended for him.  He writes English well and was aware that the Department and other correspondents sometimes abbreviated his names.  For example the Department abbreviated Naheem to “N” and Mohamed to “Md”.  The applicant was evasive, non‑responsive and vague in cross‑examination.  For example, he could not at first remember the names of the three people with whom he shared the apartment.  Then he remembered the name of one of them.  When pressed for the names of the other two, he said he could not be sure, and then added “Mohamed Naina Saibo like”.  This was plainly an invention, and when it was put to him that he was lying, he did not attempt to refute the allegation.  It was put to the applicant that in the period preceding his collection of the letter from the post office he was expecting a response from the Department to his application for a protection visa.  There was no way he was going to agree with this, and his attempts to avoid answering the question were painful to witness.  His first answer was that he thought the letter was for someone else.  When pressed, he said he was not always expecting mail from the Department.  When mail came, he went and collected it.  How could he be expecting mail from the Department when he did not know when it was going to come?  Then he said he was not interested in documents that came from the Department, and immediately contradicted himself by saying he was interested, but was not sure when the letter was going to arrive.

In addition to the unfavourable impression created by his evasiveness, non‑responsiveness and false answers, his account is inherently incredible.  The following facts are relevant in this connection:

·               The applicant applied to the Department for a protection visa on 30 June 1998

·               In the period preceding 7 August 1998 he was expecting a response from the Department

·               He was not at home when the post office attempted to deliver a letter from the Department, and a card was left saying the letter could be collected from the post office

·               The applicant collected the letter from the post office on 7 August 1998 and signed for it

·               The letter was addressed to “Mohamed N N Mohamed Saibo”

·               The applicant was aware that the Department sometimes abbreviated components of his name

·               The applicant’s name consists of two parts – his father’s name Naina Mohamed Saibo and his own name Mohamed Naheem

·               In his protection visa application the applicant gave as his full name Mohamed Naheem Naina Mohamed Saibo, that is to say a name concluding with his father’s name

·               In another part of his application he gave his surname as Naina Mohamed Saibo and his given names as Mohamed Naheem

·               The applicant was aware from bridging visas he had been granted that the Department regarded his principal name as Naina Mohamed Saibo (“NAINA MOHAMED SAIBO, Mohamed”).

In those circumstances, it does not accord with the probabilities for him to have put aside the Department’s letter on the ground that it was not intended for him, and I do not believe he did.

18                  The applicant has not satisfied me that the Department’s letter of 5 August 1998 was not sent to him.  That is to say, he has not satisfied me that the fact upon which the Tribunal based its decision, namely that the letter had been sent to him, did not exist.  For the reasons given in par 16 the letter was in my  view directed to the applicant, even though two of the components of his name were abbreviated.

19                  The applicant’s alternative contention on the no evidence ground was that the time within which he had to apply to the Tribunal did not begin to run until he opened the envelope and discovered its contents, so that his application to the Tribunal was in fact within time.  As I understood the argument, which was not developed orally, it was that if the primary submission that time had never started to run because the envelope was not addressed to the applicant were not accepted, time did not begin to run until the envelope was opened.  This submission will not assist the applicant.  On his own evidence he opened the envelope within three to five days of obtaining it from the post office, that is to say, at the latest on 12 August.  On the present submission he had twenty‑eight days from then in which to lodge his application for review.  That period expired on 11 September.  The application was not made until 14 September, and was thus out of time.  It will be apparent from what I have said in par 17, that the probability is that the applicant opened the letter on the day he received it.  But it is not necessary to make a finding to that effect.

CONCLUSION

20                  In some cases provisions such as s 53(3) and reg 5.03(1) are capable of working an injustice.  But the present is not such a case, because the applicant received notification of the delegate’s decision and had ample time in which to lodge an application for review.  The application for review of the Tribunal’s decision is dismissed.

Associate:

Dated:              1 October 1999