FEDERAL COURT OF AUSTRALIA

Chand v Minister for Immigration & Multicultural Affairs [2000] FCA 428

SURESH CHAND v MINISTER FOR IMMIGRATION and MULTICULTURAL AFFAIRS

N 1274 of 1999

MATHEWS J

28 MARCH 2000

SYDNEY

THE COURT ORDERS THAT:

1. The objection to competency is upheld.
2. The application is dismissed.
3. The applicant is to pay the respondent's costs.

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

REASONS FOR JUDGMENT

1                     The applicant has sought judicial review of a decision of the Immigration Review Tribunal (“the Tribunal”) made on 10 February 1999 which affirmed a decision that the applicant was not entitled to the grant of a subclass 414 (Specialist) visa.  The Tribunal’s file contains a copy of a letter dated 11 February 1999 addressed to the applicant at 3/4 Welch Place, Minto, New South Wales, enclosing a copy of the Tribunal's decision and informing the applicant of his appeal rights under the Migration Act 1958 (Cth) (“the Act”).  A copy of the letter was said to have been sent to C Muthu at 4 Station Street, Marrickville, New South Wales.  Mr Muthu was the applicant's agent during the proceedings before the Tribunal.

2                     The application for review of the Tribunal's decision was made on 9 November 1999.  It purports to be based on s 476 of the Act.  On 14 December 1999, the respondent filed a notice of objection to competency on the basis that the application was not lodged within the time stipulated by s 478 of the Act.

3                     Section 478, as relevant here, provides as follows:

“(1)      An application under section 476 or 477 must:

          (a) …..

(b)  be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.

(2)               The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).”

4                     The respondent also relied on regs 4.40 and 5.03 of the Migration Regulations.  Regulation 4.40 relevantly provides that:

“(1)     A notice or statement to be given to an applicant in relation to a decision of the Tribunal is to be taken to be duly given if the notice or statement is given:

(a) by posting it to the last address for service provided by the applicant in connection with his or her application for review;  or

(b) by posting it to the residential address provided by the applicant in his or her application for review;or…”

5                     The address provided by the applicant in his application for review to the Tribunal was the address at 3/4 Welch Place, Minto, New South Wales.  The bulk of the Tribunal's correspondence with the applicant was directed through Mr Muthu, his agent.  It is clear that if the notice was posted to the address at Welch Place, it was “duly given” under reg 4.40.

6                     Regulation 5.03 provides relevantly as follows:

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

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

(b)   ………..

(c)    ………..

(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)     ……

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

7                     Accordingly, on proof that the letter dated 11 February 1999 was posted within seven days of its date, the provisions of reg 5.03 deem it to have been received at the address to which it was sent.  But virtue of reg 4.40, that is sufficient notice to be given to the applicant in this case. 

8                     On 8 November 1999 the applicant swore an affidavit as to the circumstances in which the Tribunal’s decision came to his notice.  The affidavit gave his then address as 99 Longhurst Road, Minto.  Paragraph 3 of his affidavit was in the following terms:

The said decision was not received by me until Wednesday 3 November 1999 after I had seen my agent, Mr Christopher Muthu on Monday 1 November 1999, and asked if he had yet received it.  He said that he not, [sic] and he, in my presence, telephoned the MRT and asked if it was known when a decision would be handed down.  He was told that a decision had already had been made [sic].  He told me that he would go the next day and collect it.  I came back on Wednesday and saw it for the first time.”

9                     Today the respondent has filed an affidavit in court, affirmed on 27 March 2000 by Rhys Jones, a Deputy Registrar of the Migration Review Tribunal, which is the successor of the Immigration Review Tribunal.  The affidavit annexes a copy of the letter dated 11 February 1999, addressed to the applicant at Welch Place, Minto.  It also contains a copy of a checklist dated 11 February 1999, signed by the Tribunal officer in charge of this case, which ticks the squares beside the statements that a copy of the decision was sent both to the applicant and to the applicant's adviser.  The affidavit goes on to describe the system in the Tribunal's offices at that time.  Taking this up at a point near where a letter would leave the Tribunal officer: the Tribunal officer would place copies of correspondence in the relevant IRT file and place the envelopes containing the original correspondence in a mail tray.  This tray was cleared each day.  The mail was franked at the offices of the Tribunal and delivered to the post office.  Unless otherwise specified, all mail was sent by ordinary pre-paid post.  Accordingly, the system deposed to in Mr Jones' affidavit is one whereby the letter to the applicant and his adviser, annexing a copy of the Tribunal decision, would in the normal course of events have been posted on the day it was dated, namely 11 February 1999. 

10                  At the commencement of today's proceedings, I raised with Mr Lloyd, who appears for the respondent, a question as to the sufficiency of the material adduced by the respondent, in the light of the clear evidence from the applicant that he did not receive the decision in the mail.  However Mr Lloyd rightly pointed out that the address given by the applicant in his affidavit of 8 November 1999, was not the address to which the letter was required to be sent.  Accordingly, in the absence of any evidence as to when the applicant changed his address, his failure to receive the letter cannot be taken as evidence which would throw doubt upon the reliability of the Tribunal's system on 11 February 1999.  Similarly, the applicant's affidavit cannot be taken to prove that Mr Muthu did not receive the Tribunal's decision in the mail with the covering letter of 11 February.  The affidavit is hearsay and inadmissible to prove that matter. 

11                  This was so manifestly correct that I gave Mr Newman, who appears for the applicant in these proceedings, an opportunity to take instructions as to what course he might wish to take in the light of the inadequate evidence currently before me as to the non-receipt of the letter of 11 February.  Mr Newman very fairly said when I returned to court that his instructions were of no assistance.  The applicant’s situation could not be improved by seeking an adjournment in order to supplement his evidence on the matter.

12                  Accordingly I must give my judgment on the basis of the currently available evidence.  This evidence is clearly inadequate in my view to establish that there was any defect in the Tribunal's system on 11 February 1999.  That system would, in the normal course of events, have resulted in the letter enclosing the Tribunal's decision being posted on that day to the applicant at the residential address given in his application.

13                  The interaction between reg 5.03 and s 478 of the Act has been discussed on a number of occasions by judges of this court.  Perhaps the clearest exposition of it was by Beaumont J in Susiatin v Minister for Immigration & Multicultural Affairs (1998) 83 FCR 574.  His Honour at 581 discussed the meaning of the words in reg 5.03 that a document is “taken to be received” at the address to which it is sent.  His Honour made the following observations:

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

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

14                  In this case the applicant is deemed to have received the decision seven days after the day upon which it was sent, namely to have received it on 18 February 1999.  It goes without saying that the appeal, which was lodged many months later, was well outside the period specified in section 478(1)(b).  I must therefore uphold the objection to competency. The orders I make are as follows:

1. The objection to competency is upheld.
2. The application is dismissed.
3. The applicant is to pay the respondent's costs.

Associate:

Dated:              4 April 2000