FEDERAL COURT OF AUSTRALIA

SZVRO v Minister for Immigration and Border Protection [2017] FCA 421

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BEACH J:

1    The appellant appeals from a judgment of the Federal Circuit Court given on 16 September 2016.

2    The issue before the primary judge was whether the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal), erred in its decision that it had no jurisdiction to review the decision of the delegate of the first respondent (the Minister) because the appellant’s application for review by the Tribunal was filed outside the statutory time limit. The primary judge found that the Tribunal’s decision was correct and dismissed the appellant’s application for judicial review.

3    There are two issues before me. The first issue concerns whether the appellant was properly notified of the delegate’s decision under s 494B(4) of the Migration Act 1958 (Cth) (the Act). The second issue concerns the construction of s 494C(7) of the Act, which would apply if there was non-compliance with s 494B(4). Section 494C(7) prescribes when a person is taken to have received a document from the Minister in circumstances where the Minister has purported to give a document to a person in accordance with a stipulated method (such as by pre-paid post under s 494B(4)) but makes an error in doing so, but the person nonetheless receives the document or a copy of it. In the present case, the provision is relevant to ascertaining the time when the appellant was taken to have received a document which notified him of the Minister’s decision to refuse to grant a visa. The date of such a notification is relevant because it determines the applicable time limit for making any application for review to the Tribunal.

4    For the reasons that follow, I have determined to dismiss the appellant’s appeal.

Background

5    The appellant is a citizen of Fiji. On 18 December 2012, he applied for a Protection (Class XA) visa. He claimed to fear harm for various reasons which are not in issue for the purposes of the present appeal. The appellant’s protection visa application consisted of two application forms. First, in the “Form 866C – Application for an applicant who wishes to submit their own claims for protection”, the appellant stated that his “current residential address in Australia” was “VIDC [Villawood Immigration Detention Centre]: 15 Birmingham Avenue, Villawood, NSW 2163” (the Villawood address). He also stated that the Villawood address was his then current postal address. Second, in the Form 866B, in answer to the question “All written communications about this application should be sent to”, the appellant ticked the box labelled “Myself”. No address was given in the Form 866B.

6    By letter dated 18 December 2012 forwarded to the appellant at the Villawood address, the Department of Immigration and Citizenship informed the appellant that his protection visa application was not a valid application as s 48A of the Act precluded the appellant from making a valid application in circumstances where he had previously been refused a protection visa. The appellant had previously sought a Protection (Class XA) visa but was refused one on 9 December 2009.

7    On 24 July 2013, the appellant applied for a Bridging Visa E. On 29 July 2013, the appellant was notified that the bridging visa had been granted to him on the condition that he reside at an address in Claymore, New South Wales (the Claymore address).

8    By letter dated 8 August 2013, the Department informed the appellant that due to a then recent judgment of the Full Federal Court on 3 July 2013, the appellant’s protection visa application would be treated as valid so long as that decision remained applicable law. The letter was addressed and sent to him at the Claymore address.

9    By letter dated 17 March 2014, the Department invited the appellant to attend an interview on 8 April 2014 in relation to his protection visa application. The letter was addressed and sent to him at the Claymore address. The appellant attended that interview.

10    By letter dated 13 June 2014, the delegate of the Minister notified the appellant of his decision not to grant to the appellant a protection visa. The letter was addressed and sent to the appellant at the Claymore address, being sent by registered post on 16 June 2014. It would seem to be common ground that the letter was delivered to that address on or around that date.

11    On 10 September 2014, the appellant filed with the Tribunal an application to review the delegate’s decision. In that application, he gave as his address where he then currently lived as the Claymore address. He also stated that his sister could be contacted at that address and nominated her as his representative. Relevantly, on the application form the appellant wrote:

I was out of time to apply for review to the Refugee Review Tribunal.

I had gone to Queensland to help my cousin move to another house. During this time the letter arrived at my home address in Sydney

when I finally received the letter the review period had expired.

My cousin in Queensland could not help me and it took some time to settle down and gathered myself where a relative advised me to lodge this application today. I apologise for not applying for review in time.

(errors in original)

12    It appears that the appellant was not present at the Claymore address when the 13 June 2014 letter was sent, as he was in Queensland with relatives at the time the letter arrived.

13    By letter dated 10 September 2014, the Tribunal wrote to the appellant acknowledging his application, which letter was posted to the Claymore address and addressed to the appellant’s sister.

14    By letter dated 23 September 2014 addressed to the appellant’s sister, the Tribunal wrote to the appellant (by his representative) and indicated its view that the application for review was not a valid application as it was not lodged within the relevant time period. The letter was sent to the Claymore address. The appellant was invited to comment by 16 October 2014. Ultimately the Tribunal did not receive any response or comments from the appellant.

15    On 31 October 2014, the Tribunal determined that it did not have jurisdiction to review the delegate’s decision. The Tribunal was “satisfied that the applicant was notified of the decision in accordance with the statutory requirements” and observed that the material before it indicated that the appellant had been notified of the delegate’s decision by letter dated 13 June 2014 and dispatched by post. The Tribunal found that, pursuant to s 494C of the Act, the appellant was taken to have been notified of the decision on 24 June 2014 (ie seven working days after the date of the document). The Tribunal observed that an application for review had to be filed within 28 days after the day the appellant was notified of the delegate’s decision and accordingly any application for review had to be made by 22 July 2014. The Tribunal noted that as the appellant’s application for review was not received until 10 September 2014, that application for review was filed out of time and the Tribunal did not have jurisdiction in the matter.

Federal Circuit Court

16    On 20 November 2014, the appellant filed an application for judicial review of the Tribunal’s decision of 31 October 2014 in the Federal Circuit Court.

17    In that application, the appellant swore an affidavit which said at [6], [8], [9], [12] and [13] the following:

[6]    On 13 June 2014, the Minister’s delegate refused to grant me protection visa.

[8]    However, due to unforeseen events and circumstances that occurred in my life after the interview I did not receive the decision from the delegate on time and by the time I received it, the time for applying for a merits review to the Refugee Review Tribunal had passed and the tribunal can not extend the time for me due the operation of law in the Migration Act 1958.

[9]    On 10 September 2014, I decided however, to apply for a merits review and I lodged my review application with the Refugee Review Tribunal.

[12]    I was away from home interstate visiting and consoling and empathysing with a relative of mine who had just lost two people including a mother and a daughter in-law in a murder in Fiji

[13]    When the decision arrived because nobody was home it took a long time and they tried to redirect it to me interstate but it was late.

(errors original)

18    On 21 June 2016, the appellant’s application for judicial review was scheduled to be heard before the primary judge. However, the primary judge considered the issue before him to be a considerably technical one which the appellant was not in a position to deal with, especially considering his self-represented status. As such, the primary judge delayed the substantive hearing of the appellant’s application while the Federal Circuit Court attempted to secure pro bono representation for the appellant. The Federal Circuit Court’s attempts to arrange that representation were ultimately unsuccessful. The substantive hearing then proceeded on 25 August 2016, which the appellant attended with assistance from an interpreter.

19    The correctness of the Tribunal’s decision on its own jurisdiction depended upon when the appellant was taken to have been notified of the Minister’s decision not to grant a visa. The date of notification informed the time limit for lodging the review application.

20    On 16 September 2016, the primary judge dismissed the appellant’s application for judicial review because the appellant’s application for review was lodged outside the statutory time limit. The primary judge found that the Tribunal was correct in finding that it had no jurisdiction to review the delegate’s decision of 13 June 2014.

21    The primary judge observed that in order for the appellant’s application for review to be valid, such an application had to be filed within a period of 28 days commencing on the day on which the appellant was notified of the delegate’s decision (see s 412(1)(b) of the Act and reg 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations)). If the application for review was not filed within that period, the Tribunal did not have jurisdiction to review the delegate’s decision. The primary judge went on to say that under s 66(1) of the Act, the Minister when granting or refusing a visa, must notify the visa applicant of the decision in the prescribed way, which is, in the case of a visa refusal, by one of the methods specified in section 494B of the Act.

22    The primary question before the primary judge was whether there had been compliance with s 494B(4) of the Act. The appellant had been purportedly notified by the 13 June 2014 letter which was sent to the Claymore address. The primary judge accepted that there was “no specific document that was before the Tribunal or that is before this Court that directly states that the [Claymore address] was provided for the purpose of receiving documents”. However, the primary judge held that whether an address was provided for the relevant purpose had to be answered objectively, by reference to all of the circumstances. The primary judge considered the 29 July 2013 document which showed the grant of the bridging visa with the visa condition relating to the Claymore address and concluded that the Claymore address was provided “for the purpose of receiving documents”. The primary judge found that the appellant was properly notified in accordance with s 494B(4)(c). Further, his Honour noted that for the purposes of s 494C(4) of the Act, the letter was taken to have been received seven working days after the date of the document, from which it followed that the letter was taken to have been received on 24 June 2014. His Honour held that the Tribunal was correct in finding that the time limit for seeking review expired on 22 July 2014 (ie 28 days after 24 June 2014, the day when the appellant was notified of the delegate’s decision). His Honour then concluded that as the appellant’s review application was filed in September 2014, the application was made out of time and the Tribunal accordingly had no jurisdiction.

23    The primary judge then turned to the alternative question. He considered that in the event that s 494B(4) had not been complied with, s 494C(7) would apply such that the appellant was in any event taken to have been notified on 24 June 2014. First, his Honour found that s 494C(7)(a) would be engaged if there had been an error in giving the 13 June 2014 letter in accordance with the method specified in s 494B. His Honour said that such an error would arise if the Claymore address had not been provided “for the purpose of receiving documents”. Second, his Honour found that the evidence showed that the appellant did in fact receive the 13 June 2014 letter and therefore s 494C(7)(b) was satisfied. His Honour concluded at [41]:

As s.494C(7)(a) and (b) are both satisfied in the present matter, the deeming effect of s.494C(7) operates, such that the applicant is “taken to have received the document at the times mentioned in [s.494C] as if the Minister had given the document to the person without making an error in doing so”. For the reasons set out previously, the applicant is thus taken to have received the notification letter on 24 June 2014 and the 28 day period for seeking review of the decision ran from that time. It follows, therefore, that s.494C(7) would additionally support the Tribunal’s conclusion that the relevant period within which the applicant was required to lodge his application for review expired on 22 July 2014.

24    Accordingly, even if there had been some error in complying with s 494B, the primary judge accepted that by s 494C(7) the Tribunal would also have been correct in concluding that the relevant period within which the appellant was required to lodge his application for review expired on 22 July 2014. For the foregoing reasons, his Honour dismissed the application for judicial review.

the present appeal

25    On 4 October 2016, the appellant filed a notice of appeal which sought to set aside the primary judge’s decision.

26    On 1 March 2017, the hearing of the appeal took place before me. At that hearing, the appellant was unrepresented and was assisted by a Fijian language interpreter. I asked the appellant if he was able to indicate the date on which he received the letter which notified him of the delegate’s decision. The appellant was unable to do so. After hearing from the parties, I indicated that given that one important issue of the appeal was the construction of s 494C(7) of the Act, it was appropriate for the appellant and the Court to be assisted by pro bono counsel on that issue. Accordingly, I made orders for the issue of a certificate pursuant to r 4.12(1) of the Federal Court Rules 2011 (Cth).

27    On 2 March 2017, a referral certificate was issued under r 4.12. In the referral certificate, the nature of the legal assistance for which the referral was made was expressed in the following terms:

To provide legal advice and prepare written submissions in response to the written submissions of the first respondent filed on the appeal and as supplemented in accordance with paragraph 3 of the orders made by Justice Beach on 1 March 2017. Any such written submissions in response:

(a) are to be filed by 5 April 2017 pursuant to paragraph 4 of the orders made by Justice Beach on 1 March 2017; and

(b) are to address, inter alia, the issue of the construction and application of s 494C(7) of the Migration Act 1958 (Cth) as to when a person is taken to have received a document in circumstances where:

(i) the Minister has purported to give a document to a person in accordance with a method specified in s 494B but makes an error in doing so; and

(ii) the person nonetheless receives the document or a copy of it; but

(iii) the person cannot show the precise date on which he or she received it at a later time.

28    Mr Shane Price and Mr Paul Bodisco of State Chambers accepted the request for pro bono assistance. I am grateful for their assistance.

29    Written submissions on the s 494C(7) issue were subsequently filed in accordance with my orders of 1 March 2017.

(a)    Relevant legislative provisions

30    It is convenient to set out the relevant provisions of the Act and the Regulations in their form at the relevant time.

31    Section 66(1) of the Act provided:

Notification of decision

(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

32    Regulation 2.16 of the Regulations in sub-regs (1) and (3) thereof provided:

(1)  For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.

[…]

Refusal to grant visa

(3)  The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.

Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.

33    Section 494B of the Act relevantly provided as follows:

Methods by which Minister gives documents to a person

Coverage of section

(1) For the purposes of provisions of this Act or the regulations that:

(a) require or permit the Minister to give a document to a person (the recipient); and

(b) state that the Minister must do so by one of the methods specified in this section;

the methods are as follows.

[…]

Dispatch by prepaid post or by other prepaid means

(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; or

(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.

[…]

34    Section 494C relevantly provided:

When a person is taken to have received a document from the Minister

(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).

[…]

Dispatch by prepaid post or by other prepaid means

(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.

[…]

Document not given effectively

(7) If:

(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and

(b) the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

35    It is apparent that s 494B is concerned with the manner in which documents are given to a relevant person. Section 494C is concerned with the time at which those documents are taken to have been received.

36    For present purposes, ss 494B(4) and s 494C(4) are relevant as the evidence established that the document in question, the refusal notification sent by letter dated 13 June 2014, was dispatched by registered post on 16 June 2014. If the document was sent in accordance with s 494B(4), then s 494C(4) governs the time at which the person is taken to have received the document, that is, seven working days after the date of the document. If, on the other hand, a document was not given effectively under s 494B(4), but the person nonetheless received it, the effect of s 494C(7) is that it is taken to have been received on the date specified in s 494C(4) unless the person can show that it was received at a later time. In that event, the person is taken to have received it at that later time.

37    It is also appropriate to set out s 412(1) of the Act which provided:

Application for review by the Refugee Review Tribunal

(1) An application for review of an RRT-reviewable decision must:

(a) be made in the approved form; and

(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

(c) be accompanied by the prescribed fee (if any).

38    Relevantly, reg 4.31(2) also provided:

Time for lodgement of application with Tribunal

[…]

(2)  For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of an RRT-reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.

Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.

(b)    Grounds of appeal

39    The appellant has raised two grounds of appeal before me:

(a)    Ground 1 is that the primary judge erred by failing to find that the Tribunal “constructively failed to exercise jurisdiction when it made its decision on 31 October 2014, that it had no jurisdiction as my application for review was filed out of time.”

(b)    Ground 2 is that the primary judge erred by failing to find that the Tribunal “had jurisdiction to hear and review my application in that the Minister had failed to notify me of his decision of 13 June 2014 according to section 66(1) of the Migration Act 1958, as I did not receive the decision when the Tribunal found that I should have been taken to receive the Minister’s decision in accordance with section 494C, of the Migration Act 1958”.

40    Grounds 1 and 2 are related and raise two issues. It is convenient to discuss these grounds by reference to these two issues.

Was s 494B(4)(c) complied with?

41    The first issue is whether the notice of the delegate’s decision by the 13 June 2014 letter was dispatched in accordance with s 494B(4). That is, whether for the purposes of s 494B(4)(c) the letter was sent to the “last address for service” or the “last residential or business address” that was “provided to the Minister by the recipient for the purposes of receiving documents”. For the purposes of this issue and the appeal, it is not necessary to distinguish between “last address for service” and “last residential address”.

42    The second issue concerns when the appellant can be taken to have received notice of the delegate’s decision assuming that there had been non-compliance with s 494B(4). If there was an “error” in implementing the method specified in s 494B(4) and in dispatching the 13 June 2014 letter, when did the appellant receive or could be taken to have received the letter for the purposes of s 494C(7)?

43    Let me discuss the first issue.

44    In my view the only address that met the description of an address “provided to the Minister by the recipient for the purposes of receiving documents” at the time of the decision was the Claymore address. Accordingly, there was no error in sending the document to the Claymore address.

45    Before elaborating on some specific themes, it is appropriate to observe the following on the content and application of that phrase.

46    First, the limbs of s 494B(4)(c) refer to the “last address for service” or the “last residential or business address” (my emphasis). Thus the address can change over time, for example, because the previous address provided may have been superseded as in the present case where the Villawood address became irrelevant.

47    Second, the phrase “provided to the Minister” (my emphasis) does not limit such provision to written notification. It could be oral or constituted by a course of dealing between the Minister and the applicant where there had been acquiescence to a particular address being used to receive documents.

48    Third, the generality of the phrase “provided to the Minister by the recipient for the purposes of receiving documents” (my emphasis) indicates that an address may be used in respect of more than one type of visa application and communications between the Minister and the applicant relating thereto. Moreover, a more up to date address for receiving documents in relation to one type of application may be treated by the Minister and the applicant as the relevant address for receiving documents for another type of application. Indeed this may be expected in relation to the provision of “the last residential address”, where “last” in context is taken to be the “most recent at the time in question” (Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424 at [36] per Jagot J). Further, an address may be provided for two purposes, only one purpose of which is to receive documents. So, in the present case, one of the purposes was to satisfy the bridging visa condition. But such a purpose does not entail that the relevant address was not also provided for the purpose of, more broadly, receiving documents and in relation to subject matter other than the bridging visa.

49    Fourth, the phrase “provided to the Minister by the recipient for the purposes of receiving documents” (my emphasis) requires an objective assessment. It is not solely to be ascertained from the recipient’s subjective purpose, although that is not irrelevant to the objective assessment. No doubt the words “by the recipient” before the words “for the purposes…” justifies some emphasis on the recipient’s perspective for providing the address, but that is still to be objectively assessed in the light of all the circumstances, including how a reasonable person in the shoes of the Minister would have understood the purpose for which the address was being provided. Indeed, such an assessment is not inconsistent with Jagot J’s perspicuous application of an objective lens in Maroun at [29] to [37].

50    Let me turn to the facts of the present case.

51    First, in relation to the appellant’s bridging visa application, he accepted or specified the Claymore address as the residential address at which he would reside upon grant of the visa. Nothing in the documentation surrounding his grant of that visa provided any other means of communicating with him; for example, there was no email, telephone number, or alternative postal address provided.

52    Second, the grant of the bridging visa had the consequence that the appellant was released from the Villawood Immigration Detention Centre where he had resided since making his first application for a protection visa. Accordingly, thereafter the Villawood address provided in the protection visa application was no longer of any utility for receiving documents; both the appellant and the Minister so accepted and so acted thereafter.

53    Third, on 8 August 2013, the appellant received notification that his earlier protection visa application would be treated as a valid application. The letter was posted to the Claymore address. There is no doubt that the letter was received by the appellant at that address, whether described as an address for service or a residential address.

54    Fourth, on 17 March 2014 a letter was sent to the Claymore address inviting the appellant to attend an interview with the delegate. There is no dispute that the letter was received by the appellant at that address; the appellant attended the interview as scheduled.

55    Fifth, at no time did the appellant ever indicate to the Minister or the Department that the Claymore address was not the address for the receipt of documents or his current residential address; indeed it was required to be the latter given the condition on the bridging visa. At no stage did he ever provide any alternative address or other means of communicating with him.

56    Sixth, it is to be recalled that the difficulty in the present case arose because the appellant was not at the Claymore address when the 13 June 2014 letter arrived. But it has never been contended by the appellant that that letter ought to have been sent to some other address or by some other means (for example, by email).

57    Generally, and bearing in mind that whether an address has been provided for the purpose of receiving documents is to be determined objectively, the 13 June 2014 letter was served in accordance with s 494B(4). No error has been demonstrated in the primary judge’s analysis at [31] to [34].

58    Finally, I should say something further about one aspect of the appellant’s submissions. The appellant says that the only basis for the Minister’s assertion of the Claymore address as being the correct address was on the bridging visa application. The appellant says that the bridging visa application itself was not in evidence before the Tribunal or primary judge. In fact, so the appellant says, the only evidence relating to the bridging visa application were two documents being, “Form 1211 Record and notice of decision: Bridging visa E – subclass 050” and “Form 1212 Notice of conditions and security: Bridging visa E – subclass 050”; both documents were annexed to the affidavit of Liam Michael Dennis affirmed on 26 April 2016 and filed on behalf of the Minister in the proceeding before the primary judge. It is said that the appellant had signed these two documents by way of acknowledgement and that they did not constitute the appellant having provided an address to the Minister. Further, the appellant says that those documents could not be said to constitute a means by which a “residential ... address [was] provided to the Minister by the recipient for the purposes of receiving documents”. The appellant submits that it is incorrect to equate the condition that he live at a particular address with the requirement under s 494B(4) of the Act that the residential address be provided to the Minister for the purpose of receiving documents. In my view, these submissions are too narrowly framed. The primary judge was entitled to infer (see at [30]) that the Claymore address was provided by the appellant and for broader purposes than to satisfy the bridging visa condition. Moreover, the appellant’s submissions ignore the reality that no other address other than the Claymore address was relevant or current and that the course of dealings and communications between the appellant and the Minister/Department involved a ready acceptance of and acquiescence to the Claymore address being the only address for the purposes of receiving documents.

59    In summary, the Minister complied with s 494B(4). Accordingly the second issue does not arise. But for completeness, I should briefly address the second issue dealing with s 494C, including the possible application of s 494C(7), and discuss this on the assumption that, contrary to my principal conclusion, s 494B(4) had not been complied with.

What is the application of s 494C if an error had been made?

60    In the present case there are the following three possible scenarios that could determine when the appellant was taken to have received the 13 June 2014 letter:

(a)    First, if the Minister made an “error” by not giving the letter pursuant to s 494B(4) (that is, the letter was not sent to “the last residential … address … for the purposes of receiving documents”) but the appellant nevertheless received the letter on or before 24 June 2014, then the appellant is taken to have received the document at the time specified in s 494C(4) (ie 24 June 2014).

(b)    Second, if the Minister made an “error” by not giving the letter pursuant to s 494B(4), but the appellant received the letter and also shows that he received it at a specific later time than 24 June 2014, then the appellant is taken to have received it at that specific later time.

(c)    Third, but what if the Minister made an “error” by not giving the letter pursuant to s 494B(4), and the appellant received the letter but has not shown when he received it at a specific later time, although it is established that it was received at least after 24 June 2014 or indeed after 22 July 2014 albeit unspecified in relation to the actual date? When is he taken to have received it?

61    It appears that the third scenario has arisen in the present case. The appellant’s evidence negates the first scenario, but did not rise to the level of establishing the second scenario.

62    Section 494C(7) makes apparent that, at the least, the evidentiary onus is on the appellant to establish the proviso. This follows from the phrase “unless the person can show that he or she received it at a later time”. If a date is not established under that proviso, then the date specified in s 494C(4) applies. In the present case, the appellant stated that he could not identify the date upon which he actually received the 13 June 2014 letter. Indeed I asked that specific question of the appellant during the hearing of his appeal before me. But the evidence establishes that the appellant did not receive the 13 June 2014 letter until sometime (unspecified) after 22 July 2014.

63    The phrase “unless the person can show that he or she received it at a later time” is, in one sense, ambiguous. Does a person have to show a later specific time? The Minister would answer this question in the affirmative. Accordingly, on the evidence, it would say that the proviso has not been satisfied. Therefore, it says that s 494C(4) applies, with the date of receipt being 24 June 2014.

64    Contrastingly, the appellant says that the Minister accepts that the appellant did not receive the 13 June 2014 letter until after the due date for lodging an appeal with the Tribunal (ie 22 July 2014). Accordingly, the appellant says that it is “indisputable that any date after 22 July 2014 is a date which is later in time than the time mentioned in section 494C(4) (namely 24 June 2014), that being seven working days after the date of the document.” Accordingly, so the appellant submits, section 494C(7) cannot operate to deem the appellant to have received the document on 24 June 2014 because the precondition to that deeming is not met.

65    In my view, it is necessary to identify for the purposes of invoking the proviso under s 494C(7) the date of actual receipt or a specific later time.

66    First, the references to “at a later time” and “at that time” suggest specificity. They do not suggest imprecision such as some unspecified time after date X.

67    Second, contextual factors support such precision. A specified date serves the function of enlivening the time period within which to file an application with the Tribunal (see s 412(1)(b) and reg 4.31(2)). Moreover, given that there is no statutory power to extend the period within which to seek review by the Tribunal, a specific and identified date of receipt is not unimportant. An absence of precision detracts from the ascertainment of the relevant period.

68    Third, if a specific date is not identified, the proviso under s 494C(7) is not then triggered. And by force of s 494C(7), the “default” date under s 494C(4) then applies; as is stated in s 494C(7), “… the person is taken to have received the document at the times mentioned in this section…”. That is a deeming provision that operates even if the appellant shows that the document was received at an unspecified time after the deemed date. The deemed date applies if the proviso is not satisfied. And the proviso is not satisfied if an identified later date is not established.

69    But even if the appellant’s construction was the preferable one, that does not avail the appellant. The appellant did not give evidence to the effect that although he was uncertain as to the date of receipt, nevertheless he certainly received the letter within 28 days of the date that he filed his application with the Tribunal (ie within 28 days of 10 September 2014). His evidence only went so far as to say that he received notice after 22 July 2014, being after the “original” 28 days period. For example, if he had received notice on 5 August 2014, he was still outside the relevant 28 days in relation to his 10 September 2014 application.

70    For completeness, I would note one other forensic matter. It would appear that the appellant’s sister at all relevant times lived at the Claymore address. And when the appellant went to Queensland, it was to assist his cousin, not his sister. It was well open to the appellant to call evidence from his sister as to when the 13 June 2014 letter was received at the Claymore address and when the sister drew this letter to the attention of or on-forwarded it to the appellant. No such evidence has been proffered at any stage by the appellant. If there is an evidentiary gap, it is of the appellant’s own making.

71    Finally, it will be apparent that my discussion of s 494C(7) differs to some extent from that set out by the primary judge. To the extent that there are any imperfections in his analysis, that does not avail the appellant. In my view for the reasons that I have set out, s 494C(7) does not assist the appellant.

CONCLUSION

72    The appellant’s grounds of appeal have not been made good. The appeal will be dismissed with costs.

Associate:

Dated: 26 April 2017