FEDERAL COURT OF AUSTRALIA

Solomon v Minister for Immigration & Multicultural Affairs [2000] FCA 912

MIGRATION – application to review decision of Refugee Review Tribunal – objection to competency – application not lodged within twenty-eight days of applicant being notified of decision – whether letter containing decision sent by registered mail but returned unopened to Tribunal constituted notification to the applicant – whether subsequent correspondence between applicant’s solicitor and respondent evidenced notification.

Migration Act 1958 (Cth) Pt 8, ss 417, 478(1), 478(2)

Migration Regulations regs, 4.40 and 5.03

Migration Regulations (Amendment) Statutory Rules 1997, No 109 (Cth)

Kumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1233 referred to

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 referred to

Long v Minister for Immigration, Local Government and Ethnic Affairs & Anor (1996) 65 FCR 164 applied

LORETO SOLOMON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 470 of 1999

WEINBERG J

4 JULY 2000

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant 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                     There is before the Court an application for an order of review under Pt 8 of the Migration Act 1958 (Cth) (“the Act”) filed on 17 August 1999 by which the applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 11 December 1997.

2                     By amended notice of objection to competency filed on 22 June 2000 (“the notice”) the respondent objects to the jurisdiction of this Court to hear this application on the grounds that:

“(1)     The application was not lodged with a Registry of the Federal Court of Australia within twenty-eight (28) days of the applicant being notified of the decision, pursuant to s. 478 of the Migration Act 1958 (“the Act”); and

(2)       To the extent that the application seeks to challenge the decision of the Respondent made 30 June 1999 refusing to consider exercising his powers under section 417 of the Act the decision is not a reviewable decision within the meaning of Part 8 of the Act.”

3                     It soon emerged during the course of argument that ground 2 of the notice does not apply to this proceeding.  The applicant acknowledged that he did not seek to challenge, in this Court, the decision of the respondent made 30 June 1999 refusing to consider exercising his powers under s 417 of the Act.  Had the applicant sought to challenge that decision, it is clear that any such challenge would have failed.  As the notice correctly observes a decision of that character would not be a reviewable decision within the meaning of Pt 8 of the Act. 

4                     Turning then to ground 1 of the notice, the respondent submitted that the applicant had been notified of the Tribunal’s decision when a copy of the reasons for that decision was sent, by registered post, to his last known address.  This occurred on or about 11 December 1997. 

5                     Section 478 of the Act provides as follows:

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

(a)               be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and

(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).”

6                     Section 478 must be read in conjunction with what was formerly s 430(2) of the Act, and with regs 4.40(1) and 5.03 of the Migration Regulations 1994 (Cth) (“the Regulations”).  Section 430(2), prior to its repeal in 1998, obliged the Tribunal to give the applicant a copy of its decision, including the statement of its reasons, within fourteen days after the decision was made.  Regulation 4.40(1) provides:

“(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;

 …”

7                     A notice or statement, mentioned in sub-reg (1), is taken to be received at a time calculated in accordance with reg 5.03.  Regulation 5.03 relevantly provides:

“(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;

…

(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.”

8                     There is authority for the proposition that a notice or statement is given within the meaning of reg 4.40(1) when it is posted by registered mail – see Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 per O’Connor and Mansfield JJ at par 33.

9                     Regulation 5.03 was amended by the Migration Regulations (Amendment) Statutory Rules 1997, No 109 (Cth) commencing on 1 July 1997.  The historical background to that amendment is set out by Mansfield J in Kumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1233. 

10                  In Minister for Immigration and Multicultural Affairs v Singh (supra) a Full Court of this Court held that reg 5.03 was invalid in so far as it purported to operate in respect of certain time limits imposed by reg 4.31 under s 412(1) of the Act.  Regulation 4.31 and s 412(1) of the Act deal with applications for review of RRT reviewable decisions by the Tribunal, and not review of decisions of the Tribunal by the Court.  It was not contended before me that the decision of the Full Court in Singh was directly applicable to the present application, and for reasons which will become apparent, it is unnecessary for me to express any view upon that subject. 

11                  The evidence before the Court is that under cover of a letter dated 11 December 1997 the Tribunal sent a copy of its decision, by registered post, to the applicant’s last known address.  The letter together with the copy of the Tribunal’s decision was returned, unopened, by Australia Post to the Tribunal on 20 February 1998.  It appears that the applicant had left the address at which he had been residing without having notified the Tribunal of that fact.  The respondent submitted that the combined effect of regs 4.40(1) and 5.03 was that the applicant was deemed to have been notified of the decision by 18 December 1997 (seven days after the date which the letter bore), and that his application for review which was lodged on 17 August 1999 was therefore out of time.  As the respondent correctly noted s 478(2) of the Act prevents this Court from extending the period of twenty-eight days within which an application for review under Pt 8 of the Act must be made. 

12                  It is not necessary for me to determine whether the respondent’s submission that the applicant was notified of the decision by 18 December 1997 is correct.  That is because, on any view, the applicant was notified of that decision no later than 18 September 1998, approximately eleven months before he lodged his application for review. 

13                  On 18 September 1998, Messrs Nicholas Koenig and Adrian Simons, who are solicitors and accredited immigration law specialists, wrote to the Tribunal on the applicant’s behalf enclosing an authority to act signed by the applicant.  It is clear that the solicitors were instructed to act for him in relation to his claim to refugee status.  The solicitors informed the Tribunal that the applicant had never received a copy of the Tribunal’s decision because he had changed address.  The letter indicated quite openly that the solicitors were aware that the Tribunal had rejected the applicant’s claim on 11 December 1997.  It noted that the applicant had a bridging visa which would expire on 20 September 1998, and that it was therefore necessary, as a matter of urgency, that a copy of the Tribunal’s decision be forwarded to them.

14                  On 22 September 1998, the applicant’s solicitors wrote to the Minister for Immigration and Multicultural Affairs.  That letter said, in part:

“Although we have applied for a copy of the Refugee Tribunal decision, at this stage, we have not received same and, accordingly, both Loreto and our office are unaware of the substance and details of the Refusal.

Loreto’s friend in New South Wales subsequently moved and despite a request from Loreto for the friend to notify the Department of the new address in New South Wales, it appears that this was not done and accordingly when the Refugee Review Tribunal made a decision against Loreto in December 1997, no decision was ever forwarded to him and it was only because of our inquiry on his behalf on even date that we were able to ascertain the date of the Refugee Review Tribunal rejection.

Loreto had instructed us that he just recently made a voluntary inquiry to the Department as to the progress of his Refugee application whereupon he was subsequently informed that his application had been rejected and he was then granted a Bridging E visa.”  (emphasis added)

15                  Subsequently, on 15 October 1998, the solicitors wrote again to the respondent reminding him of their earlier letter.  It is clear from the terms of that letter that the solicitors were still, at that stage, acting on behalf of the applicant.  It goes without saying that by that time the solicitors had been aware that the Tribunal had rejected the applicant’s application for a protection visa in December 1997 for almost a month.

16                  It also goes without saying that in their letters to the respondent the solicitors attributed to the applicant the same knowledge concerning the outcome of the Tribunal’s determination as was possessed by them.  In other words, the solicitors confirmed in their correspondence that the applicant had himself been notified of the decision.

17                  There is authority for the proposition that an applicant is relevantly “notified” of a decision of the Tribunal rejecting his application when he learns of the decision, albeit without having yet been provided with the reasons.  In Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 a Full Court of this Court dealt with this issue, and Jenkinson J at 167 and Beazley J at 178 so held.  In the same case Jenkinson J held at 169-170 that an applicant may be regarded as having been “notified” of a decision where his duly authorised legal representatives have themselves been notified of the decision.  Both Lee and Beazley JJ disagreed with Jenkinson J regarding this latter aspect of the matter.  However, neither indicated that an acknowledgment by the applicant’s solicitors that he had been personally notified of the Tribunal’s decision could not be used to ground an objection to competency based upon s 478(1)(b) of the Act. 

18                  Notwithstanding the fact that the applicant had been notified, no later than September 1998, that in December 1997 the Tribunal had rejected his application, he did not commence proceedings in this Court to review the Tribunal’s decision until almost one year later, on 17 August 1999.  It follows that his application for review was not lodged within the requisite period of twenty-eight days of being notified of the decision.  There is no power under s 478 of the Act to extend time.

19                  It is obvious that the objection to competency must succeed.  The application for review must be dismissed, and the applicant must pay the respondent’s costs.

Associate:

Dated:              11 July 2000