FEDERAL COURT OF AUSTRALIA

Joshi v Minister for Immigration & Multicultural Affairs [2001] FCA 1765

MIGRATION – deeming provision – application for review filed more than 10 days after notification of decision of delegate of respondent – whether delegate made error of law in relying on r 5.03 of Migration Regulations – whether r 5.03 invalid

PRACTICE & PROCEDURE – service of documents – whether documents sent by registered post sent to an “address” for purposes of s 53 of the Migration Act 1958

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Migration Act 1958 (Cth) ss s 347, 504

Acts Interpretation Act 1901 s28A

Migration Regulations 1994 rr 4.10, 5.03

Minister of Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77 considered

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 cited

Al Adwan v Minister for Immigration & Multicultural Affairs [2001] FCA 706 considered

NABIN JOSHI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1336 OF 2001

RUTH NUMA SUBBA

N1337 of 2001

EMMETT J

13 DECEMBER 2001

SYDNEY

N 1336 OF 2001

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.

N 1337 OF 2001

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.

N 1336 OF 2001

N 1337 OF 2001

REASONS FOR JUDGMENT

1                     I have before me two applications brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).  They raise precisely the same legal questions and accordingly, in the circumstances that I shall briefly describe, I have heard argument at least in part in relation to both matters together. 

2                     In the first matter, the applicant Nabin Joshi (“Mr Joshi”) initially commenced proceedings under the Migration Act 1958 (“the Act”) on 21 September 2001.  Mr Joshi sought an order of review of a decision of an officer of the Migration Review Tribunal (“the Tribunal”) in circumstances that I shall briefly describe.  In the second matter Ruth Numa Subba (“Ms Subba”), also sought review of a decision of an officer of the Tribunal under the ADJR Act.  I shall describe briefly the circumstances surrounding each of the applicants and then indicate the common issue that arises.

3                     The proceeding involving Mr Joshi was fixed for hearing on 23 November 2001 and I reserved judgment on that day.  The proceeding involving Ms Subba was originally fixed for hearing on 11 December 2001 before another judge of the Court.  Both applicants are represented by the same solicitor.  Ms Subba’s proceeding was later transferred to my docket.  In the course of the hearing on 11 December 2001, the applicant’s solicitor acting for Mr Joshi foreshadowed an application to reopen his proceeding.  That application was made today. 

4                     I granted leave to the applicants to reopen in both matters to adduce evidence from an officer of Australia Post concerning the practice of Australia Post relating to the delivery of registered mail.  I shall refer to that evidence later.  I made that decision on the basis that there was no suggestion of any prejudice to the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”) by the granting of leave to reopen.  While the Minister advanced arguments in support of a contention that the reopening would be futile, I considered that it was desirable in the interests of justice that both applicants be given the opportunity of being able to rely on the evidence that they sought to adduce.

Proceeding involving Mr Joshi

5                     Mr Joshi is a citizen of Nepal.  He arrived in Australia on 4 October 1996 on a student visa.  He commenced studies at Hurlstone-Marrickville Business College on 7 October 1996.  Having completed two courses at that institution Mr Joshi then enrolled in a third course which would have resulted in the award of a diploma in accounting.  He commenced that course in March 1999 and was expected to complete the course in March 2001. 

6                     However, by a letter bearing the date 1 February 2001 (“the Cancellation Notice”), an officer of the Minister informed Mr Joshi that his current visa had been cancelled pursuant to ss 116(1)(a) and 116(1)(b) of the Act.  Under regulation 2.43(2)(b) made under the Act, the ground of cancellation was that Mr Joshi had breached the conditions attached to the grant of his visa. 

7                     On 16 February 2001, Mr Joshi lodged with the Migration Review Tribunal, an application for review of the decision to cancel his student visa.  By letter of 4 September 2001, an officer of the Tribunal informed Mr Joshi that, having regard to the terms of r 5.03 made under the Act, his application for review would not be considered by the Tribunal because it was lodged out of time.

8                     By his application to this Court lodged on 21 February 2001, Mr Joshi sought an order of review of the decision of the Tribunal.  As I have said, the application in its original form and in an amended form sought review pursuant to s 476(1) of the Act.  The Minister initially filed a notice of objection to the competency of the application.  However, the application was further amended and is now made under the ADJR Act.  The Minister now accepts that the further amended application is competent.

9                     The application in its present form is based on the ground that the decision under review involved an error of law in that the officer of the Tribunal relied on an invalid regulation, being clause 5.03 of the Migration Regulations 1994.  In addition, Mr Joshi contends that, even if r 5.03 is valid, it does not apply in the present case because the Cancellation Notice was sent by registered mail.

10                  The decision to cancel Mr Joshi’s student visa was a decision reviewable by the Tribunal (“an MRT reviewable decision”) within the meaning of s 338 of the Act.  Under 347(1)(b) of the Act, an application to the Tribunal for a review of an MRT reviewable decision must be given to the Tribunal within the prescribed period.  Under r 4.10(1)(b)(i) the period in which an application for review of an MRT reviewable decision must be given to the Tribunal starts when the applicant receives notice of the decision and ends at the end of two working days after the day on which the notice was received.

11                  Mr Joshi gave unchallenged evidence by affidavit that he checks his mailbox every working day.  He said that he did not receive any document from the Department of Immigration and Multicultural Affairs (“the Department”) from 12 December 2000 until 15 February 2001.  On 15 February 2001 Mr Joshi checked his mailbox at about 11 am.  He found a card from Australia Post advising that there was a document at Kogarah Post Office for his collection.  He attended Kogarah Post Office on the same day and collected the Cancellation Notice. 

12                  Attached to the Cancellation Notice was a copy of the decision record made by Ms Rhonda Carter.  Ms Carter is the delegate of the Minister in the Rockdale office of the Department who made the decision to cancel Mr Joshi’s student visa.  Thus, Mr Joshi first received notice of the decision to cancel his visa on 15 February 2001. Accordingly, his application to the Tribunal lodged on 16 February 2001 was prima facie within the time limited by r 10(1)(B)(i).  However, r 5.03 as in force at February 2001 was in the following terms:

“(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; or

(b)     the holder, or the former holder, of a visa; or

(c)     a person who is invited by a Tribunal to give information or comments to the Tribunal.

(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 set from a place in Australia to an address in Australia – 7 days after the date of the document; or

(b)     if the document is sent from:

(i)      a place outside Australia to an address in Australia; to an address in Australia; or

(ii)     a place in Australia to an address outside Australia; or

(iii)    a place outside Australia to an address outside Australia;

21 days after the date of the document.

(1)     Subregulation (1) does not apply to a document unless it is sent within 3 days after the date of the document.”

13                  As I have said, the decision of the Tribunal’s officer was based on r 5.03.  If the Cancellation Notice was sent to the address of Mr Joshi, by the operation of r 5.03(1)(AB), r 5.03 applied to the Cancellation Notice, since it was sent by the Minister to the applicant in his capacity as the holder or the former holder of a student visa.  The effect of r 5.03, if valid, is that the Cancellation Notice is taken to have been received at the address to which it was sent seven days after its date, namely, 8 February 2001.  That being so, in order to comply with r 4.10, it was necessary that the application for a review of the delegate’s decision be given to the Tribunal no later than the end of 10 February 2001.  Thus, if r 5.03 is valid, the application was lodged with the Tribunal out of time. 

14                  Regulation 5.03(1) only applies to a document if it is sent within three days after the date of the document.  Ms Carter gave unchallenged evidence by way of affidavit that her normal procedure when a cancellation decision was made was to arrange for a notification letter and reasons for decision to be sent to the relevant applicant by registered post.  She kept a record of the registered post number by peeling off the registered post label and sticking it to the file copy of her letter.  The Department’s file copy of the Cancellation Notice has a registered post label attached to it. 

15                  Having signed reasons for decision and a notification letter, Ms Carter’s normal procedure was to deposit the letter immediately in the mail collection tray located in her work area.  In the Rockdale office of the Department, the registry staff collect the mail once a day around 9 am.  The mail is then taken on a daily basis to the Rockdale Post Office at around 2 pm. 

16                  After depositing a letter in the mail collection tray, Ms Carter’s normal procedure was then to enter the relevant details on the computer system maintained by the Department to indicate the actions that she had taken.  A copy of the print out from the Department’s computer records relating to Mr Joshi contains four entries made by Ms Carter at 11.17 am on 1 February 2001.  Those entries indicate as follows: 

·        the Cancellation Notice was sent to a place in Australia,

·        Ms Carter is a delegate of the Minister,

·        the Cancellation Notice was sent on 1 February 2001,

·        the decision related to Mr Joshi’s student visa.

17                  In the light of the above, I draw the inference and find that the Cancellation Notice was taken to Rockdale Post Office at about 2 pm on 2 February 2001.  It was addressed to Mr Joshi at his address in Bexley.  It was sent by registered mail.  I am satisfied therefore that the Cancellation Notice was sent within three days of its date.  Therefore, if the Cancellation Notice was sent to an address in Australia within the meaning of that expression in r 5.03, then r 5.03 is applicable.

Proceeding involving Ms SUbba

18                  Ms Subba is also a citizen of Nepal.  On 4 February 1999 the Minister issued a student visa to Ms Subba in New Delhi. Ms Subba subsequently completed a Diploma of Management course at Skywell College.  On 12 March 2001 she submitted an application (“the visa application”) for a Student (Temporary) visa for the purpose of enabling her to undertake a Bachelor of Nursing at Australian Catholic University.  By letter dated 9 May 2001 (“the Refusal Letter”) addressed to Ms Subba the Minister said, inter alia, as follows:

“I refer to your visa application for a Student Temporary (Class TU) visa that was lodged with this Department on 14/3/01. 

After careful consideration of the information provided and the merits of the application, the decision was taken on 9/5/01 to refuse to grant that visa. This decision includes any family members included in the visa application.  The reasons for this decision are outlined in the attached decision record.”

A copy of the reasons of the decision were attached. 

19                  On 7 June 2001 Mrs Subba lodged an application with the Tribunal for a review of the Delegate’s decision.  On 22 August 2001 an officer of the Tribunal writing on behalf of the Deputy Registrar of the Tribunal wrote to Ms Subba relevantly saying as follows:

“I am sorry to advise you but we are of the view that we cannot accept your application to the Tribunal for the review of the migration decision. 

Your application to the Tribunal should have been lodged within a 28 day time limit.  The letter from the department informing you of the decision was dated 9 May 2001, the 28 day period expired on 6 June 2001.  Your application to the Tribunal was not received at the Tribunal until 7 June 2001. 

You have provided the Tribunal with evidence of when you collected the letter from the post office, unfortunately that cannot be taken into account as regulation 5.03 deals with the time of receipt of documents.”

20                  Ms Subba relies on uncontested evidence of her migration agent, Mr Boni Amin.  Mr Amin used post office box 886 at Ashfield Post Office as his postal address prior to 14 March 2001 and still uses that address as his postal address.  He checks that post office box every business day.  His practice is to check the post office box before he attends his office, to collect any mail in it and to take it with him to his office every morning.

21                  On the occasions that he finds a card or other document from Australia Post in his post office box advising that the post office holds an article for him, he presents the card or document to the counter at Ashfield Post Office immediately after he collects his mail and collects the article to which it relates on the same day.  He checked his post office box every business day from 10 May 2001 until 7 June 2001.

22                  Between 10 May 2001 and 6 June 2001 Mr Amin did not find any notice, card or other form of communication from Australia Post in his post office box in relation to any document from the Department concerning Ms Subba.  He presented every card that he received from Australia Post during that period to the post office and collected any article to which it related.  He did not collect any article in that period in relation to Ms Subba.

23                  On 7 June 2001 when Mr Amin collected his mail from his post office box in the morning, he found a card from Australia Post advising that they had an article for him to collect.  He took the card immediately after he collected it from the post office box and presented it to the counter at Ashfield Post Office.  The person at the counter took the card and disappeared for a short period and returned and gave to him an envelope and requested that he sign a receipt book indicating that he received the article.  He signed the book.  He then took the mail and went to his office.  On arriving at his office he opened the envelope.  It contained the Refusal Letter. 

24                  A document produced by Australia Post records that the Refusal Letter was received at Ashfield Post Office on 10 May 2001.  The envelope in which the Refusal Letter was sent was addressed to Ms Subba at the address to which I shall refer in a moment.  The Refusal Letter and its envelope was sent by registered mail.  I find that, if the Refusal Letter was sent to an address in Australia, it was sent within three days of its date within the meaning of r 5.03. 

25                  According to her visa application form, Ms Subba received help completing her form from Mr Amin.  In the form she specified in answer to a question in the form that she wanted correspondence sent to Mr Amin's address as follows: 

P.O. Box 886

Ashfield NSW 1800. 

26                  By the operation of s 338(2) of the Act, the delegate’s decision in relation to Ms Subba’s application was an MRT reviewable decision for the purposes of the Act.  Accordingly under s 347(1)(b)(i), any such application was required to be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after the notification of the decision. By r 4.10(1)(a), the period in which an application for review must be given to the Tribunal starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.

the issues

27                  Both applications raised the same issues concerning the effect of r 5.03.  I shall deal with the two alternative contentions separately. 

validity of r 5.03

28                  The first contention is that r 5.03 is invalid.  That contention is based first, on the reasoning of the majority in Minister of Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77 (“Singh’s Case”).  That case was concerned with r 5.03 prior to its amendment with effect from 1 June 2000.  Prior to that amendment, r 5.03 was in the same form except that r 5.03(2) referred to a period of seven days rather than the period of three days.  The amendment to r 5.03(2) was clearly in response to the conclusion of the majority in Singh’s Case. 

29                  The majority of the Court in Singh’s Case considered see paragraph [43] that r 5.03 in its then form was invalid since, to provide a meaningful opportunity to apply for a review of the decision of the Minister or his delegate, the time prescribed must be adequate:

·        to enable an unsuccessful visa applicant to be notified of the decision,

·        to have an opportunity to consider the reasons for the decision to which, generally speaking, that person is entitled,

·        to determine whether to seek review of the decision,

·        to prepare or have prepared the application for review, and

·        to give that application for review to the Tribunal. 

The majority considered that it was not consistent with the existence of the right of review granted by the Act, albeit to be exercised within the time limits to be fixed by prescription, to provide for circumstances where that right or review may in reality be non-existent or in practical terms be incapable or almost incapable of being properly exercised. 

30                  Thus, the majority based its reasoning on the possibility that the deeming effect of the regulation could operate even if the notification was sent seven days after its date.  In such a case, as a practical matter, even if the letter were delivered in the ordinary course, there would be an adequate time for the preparation of an application for review.  Following the amendment, however, r 5.03 will apply only if the document is sent within three days.  There will, therefore, in the ordinary course, be at least four days for delivery before the notification will be deemed to be received.  I do not consider that the reasoning of the majority in Singh’s Case is determinative of the issue that arises in the present case. 

31                  The contention that r 5.03 is invalid is also based on the proposition that delegated legislation may be struck down even if its purpose is to achieve an end within power if the means adopted is not reasonably proportionate to the pursuit of that end.  Even if a purpose of a law is to achieve an end within the power of the legislature, the law will not fall within the scope of what is incidental to the substantive power unless it is reasonably and appropriately adapted to the pursuit of the end within power.  That is to say, the law must be capable of being considered to be reasonably proportionate to the pursuit of that end.  Further, in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable to the achievement of the legitimate object sought to be attained, and in so doing, causes adverse consequences unrelated to the achievement of that object – see Nationwide News Pty Limited v Willis (1992) 177 CLR 1 at 93-4 and 101.

32                  Section 504(1) of the Act authorises the Governor General to make regulations prescribing all matters which, by the Act, are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Without limiting the generality of that authority, the Governor General is specifically authorised by s 504(1)(e) to make regulations:

“making provision for and in relation to:

(i)                 the giving of documents to;

(ii)               the lodging of documents with; or

(iii)             the service of documents on;

the Minister, the Secretary or any other person or body for the purposes of the Act.” 

33                  Section 504(3) also provides as follows: 

“The Regulations that may be made under para (1)(e) include, but are not limited to, regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of this Act and the Regulations to have been received by the person at a specified or ascertainable time.”

34                  The Minister correctly contends that r 5.03 is within the express power conferred by s 504 of the Act.  The question, however, is whether r 5.03 goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained by r 5.03 – whether it is reasonably and appropriately adapted to the pursuit of an end within power.

35                  In Al Adwan v The Minister for Immigration & Multicultural Affairs [2001] FCA 706 (“Al Adwan’s Case”), Sackville J considered the validity of r 5.03 in its present form and concluded that there was no basis for holding that r 5.03 is invalid.  His Honour suggested that the reasoning of the majority in Singh’s Case may, in some respects, have been per incuriam – see paragraph [44].  When the unsuccessful applicant in Al Adwan’s Case sought to appeal out of time it was determined that his prospects of success were so unfavourable that leave to file notice of appeal out of time should be refused - see Al Adwan v The Minister for Immigration & Multicultural Affairs [2001] FCA 1024.

36                  Sackville J expressed the view in Al Adwan’s Case that regulation 5.03 in its present form would not render a right of review under the Act nugatory.  Of course in the circumstances that have arisen in the present case, that is what has happened.  The effect of r 5.03 has been to deem notice of a decision to the ADJR Act have been received at a particular time notwithstanding that, as a matter of fact, it had not been received at that time and, by the time it had actually been received, the deadline for seeking a review of the decision has passed. 

37                  The validity of r 5.03 must be considered in the context of the very short period of time prescribed by r 4.10.  In Mr Joshi’s case, that period is two days.  Section 347(1) speaks in terms of a prescribed period.  However, that period must be a period not ending less than a specified number of days after “notification of the decision”.  There is nothing in s 347 to suggest that an application must be made within a period that ends before notification of a decision has actually been received. 

38                  However, s 504 specifically authorises a regulation providing that a document is to be taken to have been received at a specified or ascertainable time.  That would authorise a regulation providing that a document is to be taken to have been received by a particular time, whether or not it is actually received by that time.  The question is whether the period of seven days after the date of a document which might in fact be no more than four days after it was actually sent, is reasonable in order to attain the object of certainty as to when an application may be made.

39                  The Minister points to the enactment of ss 494B(4) and 494C(4) of the Act, with force from 10 August 2001.  Those sections provide as follows:

“494B(4)        Another method consists of the Minister dating the document, and then dispatching it:

(a)        within 3 working days (in the place of dispatch) of the date of the document; and

(b)        by prepaid post or by other prepaid means; and

(c)        to:

(i)         the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or

(ii)        the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.

………………………

494C   (4)        If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document;

(a)        if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; or

(b)        in any other case – 21 days after the date of the document.”

40                  The Minister contends that since the effect of ss 494B(4) and 494C(4) is very similar to the effect of r 5.03 as it was in force in February 2001, the Court should be slow to characterise r 5.03 as unreasonable or inconsistent with the Act.  I do not consider that the subsequent enactment of provisions that have the same effect as r 5.03 assist in determining whether r 5.03 goes beyond what was reasonably proportionate to the pursuit of the ends of the Act for the purpose of which r 5.03 was made.

41                  Nevertheless I consider that the object of r 5.03, in conjunction with r 4.10, is to ensure that the effect of a decision of the delegate of the Minister concerning the entitlement of a non-citizen to remain in Australia would be ascertained quickly and with certainty – see Singh’s Case at paragraph [32].  The purpose of the provisions under consideration is to provide a scheme to achieve administrative certainty in the manner and time of giving notice of decisions made with respect to visa applications and as to the expiry date for any application to review such decisions.  That observation applies equally to notice of cancellation of visas.

42                  On the other hand it is the clear intention of the legislature that a non-citizen should have an effective right of review by an administrative body, in this case the Tribunal.  As the majority in Singh’s Case held, that right of review should not be negated by provisions designed to ensure speed and certainty.  Thus there is a certain tension between the competing considerations that underpin the approaches taken to the notification provisions in the Act and the Regulations.

43                  It is in that context that the proportionality of r 5.03 must be considered, by reference to the power by which it is authorised.  In some cases negation of a right of review would be an inevitable result of the deeming effect of r 5.03.  The question is whether the scheme prescribed by the regulations is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be obtained by r 5.03.  

44                  If it was shown that, in the ordinary course, mail posted from an address in Australia to another address in Australia is not normally delivered within seven days, the effect of the provisions in question could well be to negate a right of review where any application for such review must be made within two days of receipt of notification of the decision.  Of course having regard to the provisions of r 5.03(2), a minimum of four days is allowed for delivery of the notification sent by post.  Accordingly, if it were established that a letter posted from an address in Australia to another address in Australia would not normally be delivered within four days, the same consequence may flow.

45                  However, it has not been suggested that, in the ordinary course, a letter sent from an address in Australia to another address in Australia would not, in the ordinary course, be delivered within two days.  There is no evidence as to the time normally taken for delivery of registered mail.  It was not suggested that registered mail would ordinarily be delivered later than a letter sent by ordinary mail. 

46                  There has been no explanation for the apparent delay that occurred in the present cases between receipt of the Cancellation Notice by Kogarah Post Office on 5 February 2001 and the notification to Mr Joshi on 15 February 2001 of the presence of the Cancellation Notice there, nor of the delay between receipt of the Refusal Letter at Ashfield Post Office and the notification to Mr Amin of the presence of the Refusal Letter at that post office.

47                  For example, there was no evidence concerning the usual practice in either post office that would explain such delay or to indicate that such a delay was usual.  Indeed the evidence in Mr Joshi’s application indicates that other letters received at Kogarah Post Office were collected by the respective addressees on the same day.  In particular, four other items received by Kogarah Post Office on 5 February 2001 were collected either on the same day or within two or three days thereafter. 

48                  The applicants’ argument proceeds on the basis that the effect of r 5.03 is to give rise to an irrebuttable presumption.  Legislation giving rise to a presumption of receipt is to be found in other statutes.  For example ss 160 and 163 of the Evidence Act 1995 gives rise to a presumption of receipt of letter sent by prepaid post to an address in Australia “unless evidence sufficient to raise doubt about the presumption is adduced”.  Such a provision is clearly more equitable so far as an individual is concerned than r 5.03.

49                  Provisions deeming notices to have been received within a particular time are of some antiquity.  Thus section 170(1)(c) of the Conveyancing Act 1919 (NSW) provides that a notice required by that Act to be served shall be sufficiently served if sent by post in a registered letter that is not returned through the post office undelivered.  Such service is to be deemed to have been made at the time when the registered letter would in the ordinary course be delivered.  That provision would operate even though a notice was not actually received.  Its validity however, has never been challenged, notwithstanding the potential unjust result that would ensue from its operation.

50                  As I have observed above, the legislative scheme displays a tension between a desire for confidence in decision making and the provision for review.  Regulation 5.03 ensures that the state of administrative decisions is certain at the expense of causing unjust results in individual cases.  That is the parliament’s prerogative.  While I have considerable disquiet concerning the operation of r 5.03 in both of these cases, I am unable to conclude that it is invalid.

significance of registered mail

51                  That brings me to the second argument advanced on behalf the applicants.  The essence of the argument is that there is a condition precedent to the operation of r 5.03.  That is, the relevant notice is sent to the nominated address.  If that condition is not satisfied then r 5.03 has no operation.  In particular, it has been contended that if a document is sent by registered post it is not sent to an “address”.  The argument turns for its effect on the language of r 5.03(1) in so far as it refers to a document taken to have been received at the address to which the document has been sent if the document is sent from a place in Australia to an address in Australia.

52                  The essence of the argument is that, having regard to the general instructions for delivery of postal articles operative within Australia Post, an article sent by registered mail will never be left at an “address” unless a person is present to sign an acknowledgment of receipt of the article.  As I have said, I granted the applicants leave to adduce additional evidence.  The evidence was given by Mr Dominic Calarco, a customer contact officer of Australia Post.  Mr Calarco had no first hand knowledge of the practice of post offices.  However, he gave evidence of some instruction in the course of his training.  Given the nature of Mr Calarco’s evidence, it bears little weight.

53                  Mr Calarco also identified a document tendered by the applicants as being part of an Australia Post instruction manual.  The document is headed “Section 5 – Delivery - General”.  Although in both cases the articles in question were addressed to post office boxes, the extract of the delivery manual deals with street delivery by postal delivery officers.  It does not appear to relate specifically to the practice of delivery to post office boxes. 

54                  The document indicates that domestic registered post is a “signature service item” for the purposes of the manual.  Regulation 5.1.5 provides that the persons who can accept delivery of signature service items, other than “registered person to person” items, include an apparently responsible person residing at the premises to which the article is addressed.  Item 5.1.11 provides the procedure where a signature service item cannot be delivered because there is no one present to accept delivery.  The item requires the following:

·        Complete a postal item collection advice (PM323A) and place it in the mailbox. 

·        Mark the item “card left” add the reason for non delivery, then date it and initial this notation. 

·        Leave the item at one of the following:

-         Your Centre/Office.

-         The nearest Australia Post outlet which would be convenient for the addressee to collect mail item.”

That may throw some light on the practice in relation to post boxes.  One might draw the inference that where a registered mail article is addressed to a post office box, the card referred to in item 5.1.11 would be left in the post office box.

55                  Section 66 of the Act provides that when the Minister refuses to grant a visa, he or she must notify the applicant of the decision in the prescribed way, although under s 66(4) failure to give notification of a decision does not effect the validity of the decision.  Regulation 2.16(1)(c) relevantly provides as follows:

“(1) For the purpose of section 66(1) of the Act… 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:

(i) the last address given to the Minister by the applicant under subsection 53(4) of the Act…”

Sections 53(4) and (6) provide:

“(4) An applicant may tell the Minister that a specified person at a specified  address may be given notifications for the applicant about the application.

 (6) If the Minister has been given the name and address of a person under subsection (4), the Minister must give notifications to the applicant by giving them to that person at that address and a notification so given is taken to have been received by the applicant.”

56                  In her visa application form, Ms Subba notified the address of Mr Amin for the purposes of s 53(4).  The argument, as I understand it, is that because Australia Post does not in fact leave an article addressed to an address if the articles are sent by registered mail, without first obtaining a signature, the sending of an article by registered mail does not involve sending it to an “address”. 

57                  I do not consider that there is substance in this contention.  Quite apart from the fact that the very question was resolved in Singh’s Case which binds me, I would be disposed to conclude, in any event, that the decision in Singh’s case on this question is clearly correct.  The words “send” or “sent” are not defined in the Act.  Section 28A of the Acts Interpretation Act 1901 relevantly provides:

“For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then, unless the contrary intention appears, the document may be served:

 (a) on a natural person:

………………

(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document …”

While that provision does not have direct application in the present circumstances, it does suggest that, as a matter of common sense, the use of the registered post service of Australia Post for delivery of an article would satisfy a requirement that the article be sent to an address. 

58                  It may be that a distinction can be drawn between mail addressed to an individual (for example, care of a post office box) and mail sent to an address (in the sense of a residential address).  If such a distinction exists, I can see no merit in it.  In my view, r 5.03 does not mean that, because an article is addressed to an individual, it cannot be said that it is sent to an address. 

59                  As a matter of fair reading of r 5.03, I consider that if an article is sent by registered mail with an address in Australia specified on the article as the place for delivery, such an article can be said to have been sent to an address in Australia, notwithstanding that it may well be common practice, or the invariable practice, of Australia Post not to leave the article at the address without first obtaining the signature of some person being either the addressee or a person apparently having authority at the address in question.  Provided that the notice is addressed to the applicable address under s 53, the notice will have been sent to the last address of an applicant or visa holder.  That action will therefore fall within the scope of the operation of r 2.16(1)(c) whatever the precise process that Australia Post adopts to achieve delivery of that notice to the addressee or to the premises to which it is addressed or the post office box to which it is addressed – see Singh’s Case at paragraph [33].

conclusion

60                  Notwithstanding the reservations that I have concerning the effect of r  5.03 in these cases, I consider that the effect of r 5.03 has been that the Refusal Letter and the Cancellation Notice were deemed to have been received within seven days of their respective dates.  It follows that each of the applications to the Tribunal was out of time and, accordingly, that there was no error involved on the part of the officer of the Tribunal in refusing to have the matter referred to the Tribunal for consideration.  It follows in my view that each of the applications should be dismissed with costs. 

Associate:

Dated:              30 January 2002