Deemed Notice of Service Continues to Cause an Injustice

In other areas of law notice provisions tended to be interpreted in a way so as to favour preservation of appeal or review rights. Not so in migration law where an obvious case of injustice gains no traction in the Federal Court.

In Minister for Immigration and Border Protection v ASE15 [2016] FCAFC 37, an applicant was no doubt confused by the ‘second’ service of a notice of a visa refusal.  Yet the Full Federal Court found the deemed service provisions prevented the then Refugee Review Tribunal form having jurisdiction in circumstances where the applicant did not meet the time limits set by the first service.

Here the delegate sent the notice to the applicant by registered mail on 14 January 2014 but the letter was returned unclaimed. The applicant had changed address before 14 January 2014 but had not notified Immigration of  that change of address. Without any knowledge of that refusal, the applicant, on 2 February 2014, notified Immigration of the change of address. On 4 February 2014 the applicant received a telephone call from Immigration where the change of address was discussed. A week later the visa applicant received a copy of the original letter containing the notice of refusal.

Here is how the primary judge saw the situation :

17.First, the primary judge found that the Department re-sent the letter dated 14 January 2015, shortly after the telephone call of 4 February 2015, to the first and second respondents, and that it constituted a “second notification” by the Department of the decision of the delegate.

18.By reference to the decision of the Full Court of this Court in H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153; [2002] FCAFC 18, the primary judge considered it was open to the first and second respondents to seek review of the refusal in the RRT on the basis of either the first notification (the covering letter dated 14 January 2015) or the second notification.

But the Full Federal Court found that the re-sending of the original letter dated 14 January 2014 did not constitute a “second notification”.

When the applicant received the letter on or about 14 February 2014 he only had 4 days in which to lodge an application for review to the RRT. In the telephone the Immigration officer did not mention the deadline for review was fast approaching.

The Full Federal Court found that because all that happened was a re-sending of the original notice, the applicant was informed of the actual deadline in that original letter. The applicant assumed that the limitation period of 28 days applied from the second letter. He had lodged an application for review within that ‘second’ deadline.

The better approach to all of this is indeed found in the decision of H v Minister for Immigration and Multicultural Affairs [2002] FCAFC 18 where the Full Federal Court in a joint unanimous judgment concluded :

9 When the case came on for hearing before the tribunal, it decided that it could not determine the application, taking the view that it had been commenced out of time. 9.The tribunal acted on the assumption that the only relevant dates were, first, the day on which the appellant was personally handed notification of the delegate’s decision (26 or 27 October) and, second, the date on which the application for review was lodged (8 November). If these were the relevant dates, the tribunal correctly declined jurisdiction. But the tribunal fell into error because it paid no regard to the notification sent to the migration agent. On the basis of this notification, there are two alternative bases for concluding that the application for review was within time. The first is that the notification to the migration agent was the only relevant notification of the decision, so that the application for review could be lodged at any time before 14 November. This approach assumes that once the Minister first notified the appellant of the decision, that exhausted the Minister’s obligation under s 66. If that be correct, any further “notifications” (for example, by personally serving the appellant with a copy of the decision), would not be notifications under the statute and would have no legal consequence. The second basis for holding the application to be within time assumes that the second notification cannot be ignored, and that it brought into operation a second timetable within which the applicant could file a notice of review. In that event the applicant has been given two inconsistent timetables within which to make application for review and, in the absence of any statutory basis for giving one priority over the other, the appellant was entitled to choose the timetable that best suited him. That is what occurred in this case, albeit the appellant did not know he was making a choice.

The approach by the Full Federal Court in ‘H’ is a far preferable approach.

In contrast the Full Federal Court in ASE15.

31.The simple fact that the 16 February 2015 communication was sent after the telephone call of 4 February 2015 is not, in our opinion, a proper basis upon which to characterise the re-sent letter as a “second notification”, as the primary judge did.  Nor is the fact that the further communication of 16 February 2015 did not inform the first and second respondents “that there had already been an effective notification by operation of the terms of the statute and the earlier letter sent on 14 January 2015”, as the primary judge found at [11] of his reasons for decision.  There is nothing in the facts found upon which to fairly base a finding that the Minister had withdrawn the 14 January 2015 notification and was intending to give a second or additional notification. 

32.The true position is that the letter dated 14 January 2015 was re-sent to the first respondent and by its terms made it clear that the period in which the first and second respondents were able to lodge a merits review application with the RRT was to be calculated from the date of that letter, not from some other date, such as 4 February 2015 (when the phone call was received) or 16 February 2015 (when the re‑sent letter was received).

33.The fact that, when the communication of 16 February 2015 was received by the first respondent there was, on a proper calculation of the review period, only four days remaining in which the respondents could lodge a review application, does not affect the characterisation of the notification given.

The writer ventures this as a proposal. It is time to challenge this hard-line approach before a five member bench of the Full Federal Court. It would require setting up a full factual test case in the Federal Circuit Court, possibly with the calling of some sort of expert evidence on the disadvantage this approach causes.  It would be necessary to argue that ASE15 is ‘plainly wrong’. The writer would be prepared to consider running such a case on a ‘no-win no fee’ basis

There are some aids in statutory interpretation which assist with the conclusion that merit review rights should not be destroyed wantonly, accidentally or capriciously.

One is s 15AA of the Acts Interpretation Act which reads :

15AA  Interpretation best achieving Act’s purpose or object

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

The seemed service provisions are part of the process through which merit review rights are regulated.

Secondly the enactment of merit review rights is a remedial provision. The application of orthodox principles in this regard is that a liberal construction is to be given to the statute and regulations and such an interpretation favours the non-destruction of merit review rights.

An example of the application of that principle is found in Australian Postal Corporation v Forgie [2003] FCAFC 223, where the Full Federal Court in a joint judgment observed in determining that the AAT had jurisdiction :

66 Moreover, the beneficial nature of merits review is such that when provisions are made for it within a legislative scheme, it is unlikely that the legislature would have intended that they should be construed in a narrow or technical way since to do so would be inconsistent with the generally beneficial nature of merits review.

None of these statutory aids appear to have been raised by the Court in ASE15.

But nevertheless ASE15 reminds all of the practice point that visa applicants at all time need to notify Immigration of any changes to his or her address.  In this context s 52 is relevant. It says in part :

(3A)  A visa applicant must tell the Minister the address at which the applicant intends to live while the application is being dealt with.

(3B)  If the applicant proposes to change the address at which he or she intends to live for a period of 14 days or more, the applicant must tell the Minister the address and the period of proposed residence.

It is unknown if this 14 day leeway was at all considered or relevant in ASE15. But, what if the applicant had notified Immigration of a change of address and the communication of the visa refusal crossed paths during that 14 day period. It could be the sage of a second service may have more complications that initially meets the eye.