FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 581

PRACTICE AND PROCEDURE – motion to set aside decision dismissing appeal before orders entered under Federal Court Rules – circumstances in which power to set aside decision before orders formally entered considered.

MIGRATION – refusal of protection visa – notification of decision under s 66(1) of Migration Act 1958 (Cth) – whether reg 5.02 of Migration Regulations prescribes only means of notifying visa applicant in immigration detention of decision refusing visa.

Evidence Act 1995 (Cth) s 160

Migration Act 1958 (Cth) ss 53(4), 66(1), 412, 425, 426

Migration Legislation Amendment Act (No 1) 1988

Migration Regulations regs 2.16, 2.16(1), 2.16(1)(c), 2.16(1)(d), 4.31, 4.41(1)(d), 5.02, 5.02A, 5.03

Federal Court Rules O 37 r 7

Australian Fisheries Management Authority v P W Adams Pty Ltd (1996) 145 ALR 345 applied

Sook Rye Son v Minister for Immigration and Multicultural Affairs [1999] 161 ALR 612 considered

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v

HARINDER PAL SINGH

N 496 OF 1999

O’CONNOR, TAMBERLIN & MANSFIELD JJ

12 MAY 2000

SYDNEY

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appellant’s notice of motion filed on 6 April 2000 be dismissed.

2.         The appellant pay to the respondent his costs of the notice of motion to be taxed.

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

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR DECISION

O’CONNOR & MANSFIELD JJ:

1                     On 4 April 2000 the Court delivered judgment dismissing this appeal.  We concluded that reg 5.03 of the Migration Regulations (“the Regulations”) is invalid in so far as it purports to operate in respect of the time limits imposed by reg 4.31 of the Regulations pursuant to s 412 of the Migration Act 1958 (Cth) (“the Act”).  Tamberlin J would have allowed the appeal, as his Honour concluded that reg 5.03 was a valid regulation.

2                     By Notice of Motion filed on 6 April 2000, the appellant sought orders that that decision be set aside and that the appeal be allowed.  At the time, the orders pronounced on 4 April 2000 had not been entered under O 37 r 7 of the Federal Court Rules.  The power of the Court to accede to that application is not in issue, but it is a power which ought rarely to be used.  That is because there is a public interest in maintaining the finality of litigation.  We respectfully agree with the observations of the Full Court (Sheppard, Tamberlin and Lehane JJ) in Australian Fisheries Management Authority v P W Adams Pty Ltd (1996) 145 ALR 345 at 348-350, and the discussion of the relevant authorities by their Honours in those passages, in that regard.  The caution to which their Honours refer (at 348) is appropriate where the matters sought to be argued on such an application are matters which might be raised on any further appeal or application for leave to appeal from the decision under consideration, and really involve the further arguing of an issue which was the subject of submissions by counsel for both parties when the appeal was heard.

3                     The principal contention of the appellant on this application was that our reasons for decision were largely based upon the effect of the operation of reg 5.03 on a person in immigration detention, but that reg 5.02 and not reg 5.03 applies to persons in immigration detention.  It was contended that the decision of the Full Court (Burchett, Moore and Katz JJ) in Sook Rye Son v Minister for Immigration and Multicultural Affairs [1999] 161 ALR 612 (“Sook Rye Son”) established that point.

4                     It is not at all clear that reg 5.02 provides the only means by which notification of a decision of the appellant under s 66(1) of the Act may be given.  Regulation 2.16 prescribes the means of notification of decisions under s 66(1).  The means of notification in reg 2.16(1)(c), including sending by mail, is not expressed so as to be unavailable for persons in immigration detention.  Regulation 2.16(1)(d) provides an alternative means of notification by handing a notice of the decision to the visa applicant or to a person specified by the visa applicant under s 53(4) of the Act.  It is not expressed as being the only means of notification to persons in immigration detention.  The means of notification in reg 2.16(1) are expressed simply as alternatives.

5                     Regulation 5.02 is in the following terms:

“For the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.”

6                     The term “document” is defined in reg 5.03 to include notification.  Regulation 5.02 does not use the normal mandatory expression “must” in expressing the alternative means of serving a document on a person in immigration detention.  It is apparently permissive.  It is clear that the person drafting the Regulations was aware of the significance of the term “must”:  see eg. reg 5.02A.  Moreover, as reg 2.16 is explicitly expressed as providing the means of notification of a decision of the appellant under s 66(1) of the Act, if reg 5.02 was intended to provide the only means of notifying such a decision in the case of a person in immigration detention, it would have been easy to have so expressed that intention, and to have done so in reg 2.16 itself.  Regulation 5.02 uses the expression “served” whereas the obligation in s 66(1) is to “notify in the prescribed way”, that is clearly the way prescribed by reg 2.16.  It may be that reg 5.02 provides an additional means of “handing” notification of a decision under s 66(1) to a person in immigration detention, by providing for a person authorised by the visa applicant in immigration detention to receive it, as well as a person specified by the visa applicant under s 53(4).  If the appellant’s argument were correct, even a decision in favour of a visa applicant in immigration detention would have to be served with notification of the decision in accordance with reg 5.02 notwithstanding the terms of reg 2.16(1)(a).

7                     We do not regard Sook Rye Son as determining that reg 5.02 provides the only means of notifying a visa applicant in immigration detention of a decision in accordance with s 66(1) of the Act.  That decision concerned the obligation of the Refugee Review Tribunal (“the Tribunal”) under s 426(1)(b) of the Act to notify an applicant before the Tribunal of the entitlement to appear to give evidence and to give the Tribunal written notice that the applicant wishes the Tribunal to obtain oral evidence from other persons.  The Court decided that the appeal succeeded because, in the circumstances, the Tribunal had wrongly made use of information provided by an interpreter for the visa applicant (Burchett J at 613, Moore J at 629, Katz J at 631).  Katz J at 631 expressly restricted his decision to that reason.  Moore J at 624-626 also determined that the letter given in purported compliance with ss 425 and 426 of the Act (as they stood before the amendments made by the Migration Legislation Amendment Act (No 1) 1988 came into force on 11 December 1998) did not comply with the Act as it omitted the information required by s 426(1)(b) and because it was given too late.  His Honour at 624 regarded it as unnecessary to determine whether s 426(1) of the Act required actual notification rather than notification by service of a document which, by operation of the regulations, is deemed to be received within a specified time of its dispatch.

8                     Burchett J did address that question.  His Honour at 615-616 observed that reg 4.41(1)(d) of the Regulations (which dealt with the means by which the Tribunal was to give or serve a document) operated only when there was “no other provision as to the manner of giving or serving the document” in the Act or the Regulations; he found that reg 5.02 was such a provision, and alternatively it was a special provision which must prevail over the more general provision of reg 4.41(1)(d).  His Honour then found at 618 that s 426(1) required actual notification, and that s 504(3) of the Act did not authorise a regulation which would have the effect of converting the statutory obligation in s 426 to notify certain facts into an obligation to be satisfied by the service of a document, and then deeming the service (and notification) to have occurred at a time when it had not occurred.  Consequently, in his Honour’s view, reg 5.03 was not one which applied to the giving of notice by the Tribunal under ss 425 and 426 of the Act.  Those matters indicate that his Honour’s reasoning in that case is not clearly fitted to the terms of ss 53 and 66(1) of the Act and reg 2.16 of the Regulations.

9                     The appellant also erroneously contends that we misunderstood that s 412 of the Act contemplates a minimum, rather than a maximum, time limit to be fixed by regulation.  It is reg 4.31(2)(b) which fixes the period of twenty-eight days for the cases to which it refers.  It was also put that we had wrongly “inserted into the equation” the provisions of s 160 of the Evidence Act 1995 (Cth), but as appears in par 44 of the reasons that reference was simply to adopt some period for the delivery of mail, to review the practical operation of reg 5.03.  It is evident that posting and delivery of mail is not contemporaneous.  We acknowledge that one illustration given in par 49 of our reasons of the way in which reg 5.03 may operate is erroneous, but that does not alter the reasoning underlying the conclusion which we reached.  Even if those contentions were correct, we would not regard them as bringing this matter into the class of case where it is appropriate to set aside the judgment.  They really only relate to the matters argued when the appeal was first heard, and amount to an attempt to revisit ground which was then the subject of submissions.

10                  Accordingly, in our view, the notice of motion should be dismissed with costs.

Associate:

Dated:              12 May 2000

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR DECISION

TAMBERLIN J:

11                  I have considered the arguments of Counsel for the Minister on this post judgment application but for the reasons given by O’Connor and Mansfield JJ in their joint judgment I do not consider it appropriate to vary the original decision or the orders made by the majority.

Associate:

Dated:              12 May 2000