FEDERAL COURT OF AUSTRALIA

Sochorova v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 817

MIGRATION – claim to refugee status – decision of Migration Review Tribunal – application for extension of time to lodge notice of appeal – procedural requirements of oral decision – whether notification of oral decision effected - whether oral notification by phone contemplated by section 368D(1) - whether applicant need be present for delivery of oral decision.

ADMINISTRATIVE LAW – decision of Migration Review Tribunal– whether failure to follow statutory procedure renders a decision inoperative – whether Migration Act expressly or impliedly intended procedural defect to invalidate decision.

Statutes

Migration Act 1958 (Cth) ss 368D(1), 368(1), 368A(2),368A(3), 368C(1), 368B(6),379A, 476(2)(a), 776(1)(a), 478, 379(1)(a)(i)

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ss 474, 477, 477(1)

Cases

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 Applied

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Applied

Raj v Minister for Immigration (2000) 97 FCR 346 Applied

SOCHOROVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 8 of 2002

KIEFEL J

BRISBANE

28 JUNE 2002

THE COURT ORDERS THAT:

1.         Adjourn the further hearing of the respondent’s objection to competency to a date to be fixed.

2.         The respondent pay the applicant’s costs of the hearing on the objection to date.

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

REASONS FOR JUDGMENT

1                     On 14 July 1999 Ms Sochorova (“the applicant”) applied for a Family (Residence) visa (Class AO).  She had recently been reunited with her brother who is an Australian citizen.  The applicant is a citizen of the Czech Republic.  Her daughter remains there, but she had not had contact with her for some years.  The only other member of her immediate family, her son, was then an applicant for temporary residence on the basis of business sponsorship.  Her application was refused and the applicant applied to the Migration Review Tribunal for review in November 1999.  That hearing was conducted on 14 August 2001 in the presence of the applicant, her brother and an interpreter.

2                     From about July 1999, the applicant had been represented by a firm of Solicitors, MacDonnells.  It is not clear when their services were terminated, but their non-attendance at the hearing suggests it was some time before then.  Mr Hogarth, a partner of the firm, then had the the conduct of her matter.  Mr Hogarth says that he received a telephone call from the Tribunal member in question on 16 August 2001.  She advised that she was attempting to contact the applicant.  He advised her that he no longer acted for the applicant and that his services had been terminated.  He said that he did not have any current telephone number for the applicant but gave her last known telephone number and address.  He indicated that he had experienced difficulty contacting her through her brother.  His mobile telephone number appeared to have been disconnected.

3                     The decision of the Tribunal is dated 21 August 2001.  It affirmed the decision that the applicant was not entitled to a grant of the visa sought.  It is entitled “Advice of Oral Decision”.  The Statement of Decision and Reasons are dated 24 August 2001.  The applicant says that she did not receive a copy of the advice or reasons until 19 December 2001, when a copy was forwarded by the Tribunal at her request.

4                     An e-mail annexed to an affidavit of the respondent’s solicitor suggests that the applicant’s brother was notified, orally, of the decision on 21 August 2001.  The brother has not commented upon that.  This appears to be the basis for the Tribunal’s view that the decision had been given orally.  Mr Hogarth received a letter dated 24 August 2001 from the Tribunal addressed to the applicant.  It enclosed a copy of the oral decision which it said had been “given to you orally on 21 August 2001”.  There is nothing to suggest that the applicant was herself advised of the decision.  Mr Hogarth assumed that the decision had been forwarded to the applicant and the copy he received had been forwarded as a matter of courtesy only, given his earlier conversation with the Tribunal member. 

5                     On 14 January 2002 the applicant filed two documents, an “application for extension of time to file and serve notice of appeal from tribunal” and a notice of appeal, the grounds of which were said to be that the determination of the Tribunal was based on an incorrect application of the relevant regulations and in particular the definition of certain terms.  The applicant’s initiating documents were filed after the amendments to the Migration Act 1958 (Cth) (the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)) came into effect on 2 October 2001.

6                     On 21 March 2002 the respondent filed an objection to competency.  The ground for the objection was that the Court did not have jurisdiction to deal with an application which is out of time.  Submissions were prepared by Counsel appearing pro bono for the applicant on that point.  On 15 April 2002 the respondent filed an Amended Notice of Objection to Competency, which contained an additional ground relating to the notice of appeal itself.  It is contended that it does not comply with the requirements of such a document and additionally is not an application permitted by s 474 Migration Act 1958 (Cth), following the 2001 amendments.

7                     At the time of the making of the decision, Division 6 of Part 5 of the Act contemplated that a Tribunal decision could be “handed down” or be “given orally”.  The relevant provisions are not different in the current legislation. If it was given orally, the applicant was taken to be notified of the decision on the day on which the decision was made:  s 368D(1).  That subsection also required that the applicant be given a copy of the statement prepared under s 368(1) within 14 days after the decision.  If the decision was to be handed down, the applicant had to be invited to be present:  s 368A(2).  The decision could then be handed down whether or not the applicant was present:  s 368A(3).  In the event that the applicant’s personal representative was present the applicant was taken to be notified of the decision on the day it is handed down:  s 368C(1).  It would appear to be implicit in these provisions that an applicant attending the hearing is also taken to be notified of the decision, as Lehane J observed in Raj v Minister for Immigration (2000) 97 FCR 346, 349[7].  If neither the applicant nor their representative was present, the Tribunal was obliged to notify the applicant of the decision by giving the statement referred to in s 368(1) within 14 days after the day on which it was handed down:  (s 368B(6)), by one of the methods referred to in s 379A.

8                     Given that the statute provides that an applicant is taken to be notified of an oral decision on the day it is given, it must contemplate that an oral decision is given when the Tribunal gives its decision at the conclusion of the hearing and in the presence of the applicant or the applicant’s representative.  That was the view expressed by Lehane J in Raj, 349 [10] and I respectfully agree.  That is clearly not what occurred in the present case, despite the description of the decision.  The oral notification, by telephone, to the applicant’s brother is not that to which s 368D(1) refers.  Apart from the procedure not being that provided by the subsection, the brother was not the applicant’s representative.

9                     The respondent does not contend that the procedures for handing down a decision were followed.  It is accepted that the process which ought to have been undertaken was that provided for in s 368D(1) and that this has not occurred.  Nevertheless it is submitted that the applicant has been notified of the decision, either when her former Solicitor was provided with a copy of the s 368(1) statement, on 24 August 2001, or when she received a copy herself, on 19 December 2001.  In the event that notification is found to have taken place on the earlier date, the applicant’s initiating process was filed well out of the time limited by the statute and there is no power to extend that period.  If it did not occur until 19 December 2001, the documents were filed within the requisite 28 days (see s 477 of the current Act).  In that event, the respondent will place reliance upon its additional ground in the amended notice of objection to competency. 

10                  The argument put forward for the applicant is that the defect in the procedures required for oral decisions cannot be cured.  As a result, it is submitted, there has been no notification under the Act and time has not commenced to run with respect to the bringing of proceedings in this Court.  If this is correct, it would seem to follow that the appeal is not competent and that some form of declaratory relief is necessary.

11                  The effect of the applicant’s argument would be that a failure to follow the statutory procedures relating to the pronouncement of oral decisions had the result that there was no operative decision.  That would not seem to me to be correct.  As the majority pointed out in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388 [91], an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.  It will depend upon a consideration of the Act in question. In the present case the Migration Act did not expressly or impliedly state that such a consequence would follow.  It may be that there are other consequences.  A ground for judicial review might be created by a failure to follow a procedure or because,  in that process, an applicant was denied procedural fairness.  The latter ground was not, in any event, amongst those which could be considered by this Court:  see s 476(2)(a).  There was a ground provided by s 476(1)(a) where procedures required to be observed by the Act were not observed, but it was limited to procedures “in connection with the making of the decision”.  It has been held not to apply where the decision had already been made:  Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, 20 [77], [212]. 

12                  Section 478 required an application to review a decision to be lodged within twenty-eight days “of the applicant being notified of the decision”.  Section 477(1) of the current Act provides that applications for judicial review must be made to the Court within the same number of days “of notification of the decision”.  Since the respondent relies upon notification to the applicant’s former solicitor on 24 August 2001 it is necessary to have regard to the provisions then applying to notification of a decision to determine whether they have been satisfied.

13                  In the case of a decision handed down, alternative provision is made for notification of the decision where neither the applicant nor the representative had attended.  In the case of an oral decision no additional procedure was provided, no doubt because it was assumed that the applicant or a representative would be present.  It is not necessary in the present case to determine whether the Tribunal had an obligation to notify in a circumstance where a party was absent at the conclusion of the hearing.  The process here was not the continuous one assumed by the Act to have occurred.  It is necessary only to bear in mind that the purpose of notification is to bring the decision to the parties’ attention so that they may consider the course open to them.  That purpose may be more readily seen to be satisfied where the applicant had actually received the decision. 

14                  There were however provisions in the Act which deemed documents to have been given to an applicant in certain circumstances. Section 379A(1)(a)(i) provided that a document is taken to be duly given to an applicant for review if it was sent to the last address for service.  Regulation 4.39 provided that a new address for service might be lodged but the regulation regarded lodgment with the Tribunal as requiring a notice in writing. This would not be satisfied in the present case by the oral advices by Mr Hogarth to the effect that his firm’s address was not the address for service.  It follows that it was the last address for service for the purposes of the Act.   Regulation 5.03(1) then deemed the document to have been received seven days after the date the document bore, although it is here conceded to have been received at an earlier time.

15                  There is in my view, an important qualification to the scope of s 379A(1) for present purposes.  It is expressed to have regard only to documents which are specified in subsection (3) of the section.  They include the statement to be sent under s 368B(6) which is to say the document to be provided when an applicant was not present at the handing down of the decision.  Section 379A(3) does not include a reference in the statement referred to in s 368D(1).  The statement there referred to is to be provided after notification of an oral decision and is a requirement additional to notification.  As earlier observed, notification of the decision is itself assumed to have occurred at the conclusion of the hearing, by pronouncement in the presence of the applicant.  Logically, therefore, s 379A cannot deem notification to have occurred at a later point.  Such a provision is intended to facilitate proof of notification in the situation where a person has already been invited to attend to hear the decision and has not done so.

16                  It follows in my view that reliance cannot be placed by the respondent on the provisions of s 379A(1).  Notification of the applicant was not effected upon her former solicitor.  For the reasons earlier given there does not however seem to me to be anything to prevent notification of the decision in fact upon the applicant. Although the method of notification by s 368D(1) was not achieved, the applicant herself received a copy of the decision on 19 December 2001.  The purpose of notification for the purposes of s 478 was thereby met.  

17                  At this point I find that the applicant was first notified of the decision on 19 December 2001.  The applicant should have the costs of the hearing of the objection to competency to date.  Whether a declaration is necessary can be considered at a later point.  It remains to consider the second ground of objection.  The applicant’s pro bono counsel has not had an opportunity to address it.  I will set the matter down for further hearing.

Associate:

Dated:              28 June 2002