FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1558

MIGRATION – protection visa – application for review by Refugee Review Tribunal – application accepted within time by Hobart office of DIMA “on behalf of RRT” – application forwarded by Hobart office via Canberra – received at RRT office in Sydney out of time – whether Hobart office agent for RRT – implied agency

WORDS AND PHRASES – “registry”

Migration Act 1958 (Cth) ss 412(1), 476(1)(e)

Migration Regulations, reg 4.31(3)

Jones v Dunkel (1959) 101 CLR 298 at 308 applied

Hely-Hutchinson v Brayhead [1968] 1 QB 549 at 584 cited

Zachariassen v The Commonwealth (1917) 24 CLR 166 at 179-180 applied

Bowstead and Reynolds on Agency (16th ed, 1996) Article 8 (p 51) applied

DALJEET SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NO. T11 OF 1999

HEEREY J

11 NOVEMBER 1999

SYDNEY (HEARD IN HOBART)

THE COURT ORDERS THAT:

1.         The appeal is allowed.

2.         The decision of the Refugee Review Tribunal dated 3 May 1999 is set aside.

3.         The matter is remitted to the Tribunal for reconsideration according to law.

4.         The respondent pay the applicant’s costs, including reserved costs.

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

REASONS FOR JUDGMENT

1                     The applicant Mr Daljeet Singh was refused a protection visa.  The last day for lodging an application for review to the Refugee Review Tribunal (RRT) was Wednesday 24 March 1999.  On the preceding Friday, 19 March, he took to the office of the Department of Immigration and Multicultural Affairs in Hobart a correctly completed application form in an envelope correctly addressed to the RRT at its Sydney office.  An officer of the Department took the application and gave Mr Singh an official receipt stating that it was received “on behalf of” the RRT and would be sent “by internal bag to Sydney office”. 

2                     Mr Singh’s application was forwarded by the Hobart office of the Department via Canberra and did not reach the Sydney office of the RRT until 26 March.  On 3 May 1999 the RRT ruled that it did not have jurisdiction to review the refusal decision. 

Factual background

3                     Mr Singh’s language is Punjabi.  He speaks no English.  He came to Australia on 25 December 1998 on a visitor visa.  On 19 January 1999 he applied for a protection visa.  He has not been in immigration detention.  His application was refused by a delegate of the Minister on 17 February.  On that date a letter advising of the refusal was sent by the Department to Mr Singh at an address in Hornsby, New South Wales.  The letter stated, amongst other things,

“You may apply to the Refugee Review Tribunal (RRT) for review of the refusal to grant you a Protection Visa (866) ….  If you decide to apply for review, you must lodge your application with the RRT within 35 days of the date of this letter.”

4                     The letter enclosed an RRT brochure dated May 1997.  The brochure, which is only in English, provides information about the RRT and its procedures.  Under the heading “When must I make my application for review?” the brochure states:

“APPLY AS SOON AS YOU CAN.  THE TRIBUNAL CANNOT EXTEND THE APPLICATION PERIOD.

If you are not in immigration detention

The Tribunal must get your application within 35 calendar days of the date of the letter from the Department of Immigration and Multicultural Affairs telling you of the decision ….”

5                     Under the heading “Where must I send my application?” it is stated:

“If you live in Victoria, please give your application to the Melbourne office of the Tribunal.  If you live elsewhere in Australia, please give your application to the Sydney office of the Tribunal.  You may hand-deliver, post or fax the application to the Tribunal.  The addresses and numbers are listed on the back of this pamphlet.”

The offices of the Tribunal are open from 9.30 am to 4.30 pm Monday to Friday, except public holidays.”

6                     On the back of the brochure the addresses and postal addresses of offices of the RRT in Sydney and Melbourne are given, together with telephone and fax numbers. 

7                     On a date which does not emerge in the evidence, the Department’s letter reached Mr Singh.  He had moved to Tasmania and was living in Lenah Valley and working at an Indian restaurant in Hobart.  He prepared an application for review and put it in an envelope correctly addressed to the RRT’s Sydney office.  It is reasonable to infer that in doing this he was assisted by an English speaking friend.  On Friday 19 March, in the company of a friend  Mr Harbinder Singh (who is now back in India), Mr Singh set off for the Hobart Post Office to post his application.  On the way he went to the office of the Department in Hobart to enquire about visa conditions stamped on his passport.  An officer at the front counter told him that “the visa stamp is fine and I can take this letter if you have come to give this also”.  Mr Singh’s friend told the officer that Mr Singh was going to post the letter to the RRT for a review of the decision not granting a protection visa.  The officer said that the Department could take and forward the correspondence on behalf of the RRT.  She assured Mr Singh (through his friend) that the Department could send the correspondence to the RRT by internal mail.  Mr Singh’s friend told the officer that the application was urgent because the expiry date for review was 24 March.  The officer gave Mr Singh a receipt.  Mr Singh deposed:

“11.     I left the letter with the DIMA officer, believing that it may be as [sic] a matter of routine to take the application on behalf of RRT.

12.       At the first place [sic], I had no intention of leaving my application with DIMA Hobart, it became irrefutable [sic] that it was o.k. for the officer to take my application.  At the time of giving the receipt she stressed that ‘yes, we do it all the time’.”

8                     The receipt was in these terms (the italicised parts being in the handwriting of the officer who spoke with Mr Singh):

[Logo]                                   DEPARTMENT OF

IMMIGRATION, LOCAL

GOVERNMENT & ETHNIC AFFAIRS

                        DOCUMENT RECEIPT

Name:   Daljeet Singh

Document   Type/Number:

On behalf of RRT.  Will send by internal bag to Sydney office.  THIS WILL NOT be held in the Hobart Office

……..[Sgd]..……                                                                  19/03/99

       Officer                                                                                  Date

N/A

Above Document – Posted/Collected

White sheet to Client.

Pink sheet P.A. on File

Yellow sheet Book Copy

9                     Mr Singh kept the receipt and did not discuss the matter further with his solicitors.

10                  The officer in question was Ms Maria Duharte.  She is an Administrative Services Officer Grade 3 who has been employed with the Department since 1991.  She speaks English and Spanish.  She has worked in the counter area of the Hobart Office since November 1995.  She recognised the handwriting on the receipt as her own.  She deposed that she did not recollect the events of that date nor the receipting of those particular documents with any degree of certainty due to the passage of time and the fact that she sees so many people whilst working in the counter area.  But she believed that she could “vaguely recall” the circumstances.  She deposed that the fact that she had written the words “WILL NOT” in capitals and with underlining

“strongly suggests to me that I was uncomfortable and unwilling to accept these documents and did so only with a large degree of reluctance.  I can only assume that the Applicant must have been insistent.”

11                  She deposed that her usual practice was to state to clients who present documents in such a manner that such documents were “not validly lodged”.  Further, it was not her usual practice to discuss technical issues such as visa conditions, legislation or appeals to the RRT with a friend of an applicant.  Her usual practice was to use the telephone based translation service.  She “strongly doubt(ed)” the allegation that she allowed Mr Singh’s friend to be the translator.   

12                  The practice in the office at the time was to send internal mail by Ansett air freight bag to the Department’s head office in Canberra every Wednesday and Friday for distribution.  The mail bag left the office at about 3.30 pm on those days.  There was no evidence as to the time when Mr Singh gave Ms Duharte his application.  The front counter closed at 4.00 pm so it is conceivable the Friday bag had already left.  Even if the application caught the Friday bag, there would obviously be a real risk that the time taken to handle the document in Canberra and onforward it to Sydney would result in it missing the following Wednesday’s deadline.  The receipt was quite misleading in saying that the application would be sent “to Sydney office” and saying nothing of the detour via Canberra.

13                  Ms Duharte deposed:

“13.     Prior to March this year I knew that it was not appropriate for various reasons to forward documents to the RRT on behalf of others.  I knew this because of my training and my years of experience in the Department together with my perusal of frequent e-mails from our central office advising not to do this.

14.       I have been aware for a long time that the Department does not have any agency arrangement with the RRT.  I am also well aware that the Department does not hold itself out to be agents of the RRT. 

15.       I believe that for the above reasons that I was reluctant to receipt these documents and can only assume that I did so on the insistence of the applicant.”

None of the “frequent e-mails” were produced.

14                  In cross-examination she said she received documents in the daily routine of her work.  These documents included visa applications and other documents pertaining to applications that “we” (which I take to mean the Hobart office of the Department) may be holding.  She said that the Hobart office also takes documents on behalf of the Translating and Interpreting Service.  That is a body which is part of the Department but had moved to Melbourne.  Her evidence continued:

“Q.      You said that you accept the documents; are there any instructions to accept certain documents?

A.        There are guidelines.

Q.        When you say ‘guidelines’, can you explain, please?

A.        Are we talking about documents specifically?  For personal documents, that is documents that are going in to files for application we give a receipt, a handwritten receipt.

Q.        So that is the procedure to accept documents from that client, you take the documents and you issue a handwritten receipt?

A.        Yes, for personal documents.

Q.        Yes.  And you have two types of receipts, as you mentioned before?

A.        We have an electronic receipt if we take money; we have a handwritten receipt if we take personal documents.

Q.        Does the handwritten receipt show that this is issued only when a client insists?

A.        It is issued only when clients hand in personal documents.”

15                  She said that she did not recall the incident with Mr Singh with clarity.  She did not believe that she would have accepted the document readily and

“I can only assume that I was being, you know, that the client was being very affirmative [sic] in me taking the application and that is why I have done it.”

16                  An affidavit was sworn by Mr Robert George who is the acting State Director in the Hobart office of the Department.  He deposed that the Department and its Hobart office had no arrangement or understanding with the RRT to act as its agents for any purpose and that the Hobart office “has a standing instruction to this effect and staff employed in the Hobart office have been instructed in this regard”.  If that “standing instruction” was in written form, no document was produced.

Legislation

17                  Section 412(1) of the Migration Act 1958 (Cth) provides:

“An application for review of an RRT-reviewable decision must:

(a)       be made in the approved form;

(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; and

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

18                  Regulations 4.31(1) and (2) of the Migration Regulations prescribe for the purposes of s 412(1)(b) a period, in the case of an applicant not in immigration detention, of 28 days commencing on the day on which the applicant is notified of the decision.  As already noted, it is common ground that Mr Singh’s application had to be given to the RRT on or before 24 March 1999:  see reg 5.03(1).  Regulations 4.31(3) and (4) provide:

“(3) Subject to this regulation, an application must be lodged at a registry of the Tribunal:

       (a)     by posting the application to that registry; or

       (b)     by leaving it at that registry in a box designated for the lodgment of such applications; or

       (c)     by leaving it with a person employed at that registry and authorised to receive such documents; or

       (d)     by means of electronic facsimile transmission to that registry.

 (4)      An application posted in accordance with paragraph (3)(a) or transmitted in accordance with paragraph (3)(d) is not to be taken to have been lodged until it is received at a registry of the Tribunal.”

19                  The RRT is established by s 457 of the Act.  It is to consist of a Principal Member, a Deputy Principal Member and such number of Senior Members and other members as are appointed in accordance with the Act: s 458.  Members are appointed by the Governor-General: s 459.  The Principal Member is the executive officer of the Tribunal and is responsible for the overall operation and administration of the Tribunal: s 460(1).  The Act makes provision for the period of appointment of members, remuneration, leave and other matters.  By s 471 the Minister “is to cause a Registry of the Tribunal to be established”.  The Registrar and other officers of the Tribunal are to be appointed by the Minister:  s 472(2).  There appears to be no provision constituting the RRT as a body corporate. 

Conclusion

20                  In its reasons for holding that it lacked jurisdiction, the RRT said:

“The Tribunal is satisfied that the applicant, his adviser and DIMA staff in Hobart and Sydney have proceeded on the basis that the application was properly lodged in the DIMA Hobart office and did not require urgent transfer to the RRT.  Unfortunately, that is not the case.  As the review application was received by the Tribunal outside the mandatory time limit, it is not a valid application and the Tribunal has no jurisdiction to review the Delegate’s decision.”

21                  This finding of the Tribunal is at odds with the evidence presented by the Department to this Court.  If the evidence of Mr George and Ms Duharte is to be accepted, the receipt of the application “on behalf of the RRT” was contrary to a “standing instruction” and was therefore not properly lodged in the Hobart office. 

22                  The explanation proffered by Ms Duharte, that she was “uncomfortable and unwilling” to accept the document, and only did so on the insistence of Mr Singh and his friend, does not make sense.  What possible power did Mr Singh and his friend have to make her do something which she did not want to do?  All she had to do was to tell them to take the envelope to the Post Office which, according to Mr Singh, whose evidence I accept, was what he was going to do anyway.  Moreover, if Ms Duharte wanted to receive the document under protest, or to warn that it was not to be treated as lodged with the RRT, she only had to note this on the receipt.  The statement in the receipt that the document “will not be held in the Hobart office” does not, on an objective reading, suggest any unwillingness in accepting it.  Rather it is informing the applicant that the document will be sent to Sydney and that any further dealings should be with the Sydney office of the RRT – as would in fact be the case.  The expression “on behalf of RRT” is the quintessential language of agency.  Further, the giving of a receipt, which indicates that another copy is to be kept in the Department’s book and a copy is to be kept on the Departmental file, indicates that it is being received and recorded in the Department as a properly received document.  Further, the issue of a receipt seems to have been done pursuant to “guidelines”.  These were not produced, but presumably they deal with the receipt of documents properly receivable in the Hobart office.

23                  The issuing of the receipt is totally inconsistent with the existence of the suggested “standing instruction” against receipt of documents on behalf of the RRT.  The only rational explanation is, and I so find, that there must have been a course of dealing between the RRT and the Hobart office, acquiesced in by both sides, in which such documents were accepted by the Hobart office on behalf of the RRT.  The unexplained non-production of any documentary record of Mr George’s “standing instruction” or the “frequent e-mails” referred to by Ms Duharte, enable the inferences supporting the finding as to this course of dealing to be more confidently drawn:  Jones v Dunkel (1959) 101 CLR 298 at 308.  To the extent that the evidence of Ms Duharte and Mr George is to the contrary, I do not accept it. 

24                  That course of dealing would give rise to an implied authority for the Hobart office of the Department to accept documents on behalf of the RRT.  This is not a question of estoppel or apparent agency; there was actual agency arising out of this course of dealing.

25                  Bowstead and Reynolds on Agency (16th ed, 1996) Article 8 (p 51) states:

“IMPLIED AGREEMENT

Agreement between principal and agent may be implied in a case where each has conducted himself towards the other in such a way that it is reasonable for that other to infer from that conduct consent to the agency relationship.”

The learned authors go on to say (p52):

“No special rules of law peculiar to agency are involved here:  this Article simply represents, in the sphere of agency, the obvious proposition that contracts are not always expressly made, but often inferred by the court from the circumstances.”

See also Hely-Hutchinson v Brayhead [1968] 1 QB 549 at 584. 

26                  In addition to the circumstances already mentioned, and in particular the issue of the receipt pursuant to “guidelines”, there is the circumstance that the Minister is responsible for both the RRT and the Department as a whole:  see Zachariassen v The Commonwealth (1917) 24 CLR 166 at 179-180.  Moreover, however independent the RRT is in its decision-making function, its support staff have what counsel for the Minister called “a more direct relationship with the Minister than the Tribunal itself does”. 

27                  There is evidence also of the Hobart office taking documents on behalf of the Translating and Interpreting Service, another entity within the Department, which had moved to Melbourne.  So it is understandable that a similar practice might grow up in which the Hobart office accepted documents on behalf of the RRT and gave receipts like the one Ms Duharte gave to Mr Singh.  The acceptance of such documents by the RRT would amount to acquiescence in such a course of conduct and consent to agency within the principle stated by Bowstead and Reynolds.

28                  Such a course of conduct would also constitute the Hobart office a “registry” of the RRT for the purposes of reg 4.31(3).  There is a distinction to be drawn between “a Registry of the Tribunal” which the Minister is to cause to be established pursuant to s 471 and “a registry of the Tribunal” referred to in reg 4.31(3) and (4).  The s 471 “Registry” naturally suggests one location at which the principal administration of the RRT is to be situated.  If the word “registry” in reg 4.31(3) and (4) was intended to have the same meaning, the definite article would be used; applicants would be required to lodge applications at “the Registry”.

29                  The RRT brochure does not use the term “registry” (or “Registry”) but speaks of the “Sydney office” and the “Melbourne office” of the Tribunal.  This suggests that the term “registry” in reg 4.31(3) and (4) is not used as a term of art.  The brochure is not a statutory instrument creating rights and obligations in itself.  For example, there might in a given case be real doubt whether an asylum-seeker “live(d)” in Victoria.  If such a person gave their application to the Melbourne office and it subsequently turned out on a full examination of the circumstances that they really lived in South Australia, it seems inconceivable that the RRT would not have jurisdiction even though, in terms of the brochure, the application should have been sent to the Sydney office. 

30                  The Macquarie Dictionary definitions of “registry” include “a place where a register is kept; an office of registration”.  In turn “register” includes “1.  A book in which entries of acts, occurrences, names or the like are made for record.  2.  Any list of such entries; a record of acts, occurrences, etc”.  In the Hobart office of the Department there were “guidelines” which resulted in the receipt in question being issued.  Two copies of the receipt were kept – a pink sheet on a file and a yellow sheet in the receipt book.  The information thus recorded in the Hobart office included the name of Mr Singh, the date of receipt and the fact that the document was received “on behalf of” the RRT.  All of this points to the conclusion that the Hobart office was recording the receipt of an RRT document and thus was carrying out the function of a registry of the RRT within the meaning of reg 4.31(3) and (4).  For the reasons already mentioned, it is to be inferred that the RRT had acquiesced in and consented to the Hobart office carrying out that function.

31                  I conclude that Mr Singh has made out a case for review under s 476(1)(e) of the Act.  The error of law I would identify as being an incorrect interpretation of the applicable law of agency to the relationship between the RRT and the Hobart office of the Department or the failure to apply that law to the facts as found.  Counsel for the Minister’s argument implicitly accepted that if the evidence established compliance with s 412 an error of law would be made out.

32                  The appeal is allowed.  The decision of the RRT dated 3 May 1999 is set aside.  The matter is remitted to the RRT for reconsideration according to law.  The respondent is to pay the applicant’s costs, including reserved costs.

Associate:

Dated:  11 November 1999