Santos, Odelia v Minister for Immigration & Multicultural Affairs [1997] FCA 341

CATCHWORDS IMMIGRATION - application to Refugee Review Tribunal for review lodged out of time - time for lodging application determined by notification of decision of respondent - notification of decision of respondent not received by applicant - whether notification deemed to be received - whether notification must be received to be effective - actual receipt of decision not necessary for notification. Migration Act 1958, ss 53, 66(1) Migration Regulations, reg 2.16, 5.03 Vines v Djordjevitch (1955) 91 CLR 512, cited Attorney-General (ACT); Ex rel Olaseat Pty Ltd v Australian Capital Territory Minister for Environment, Land and Planning (1993) 43 FCR 329, cited Minister for Immigration and Ethnic Affairs v Tang Jia Xin (1993) 47 FCR 176, cited Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31, cited Coates v Commissioner for Railways (1961) 78 WN (NSW) 377, cited Muller v Dalgety & Co Ltd (1909) 9 CLR 693, cited ODELIA SANTOS - v - MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS NO NG 924 OF 1996 Tamberlin J Sydney 8 May 1997

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 924 of 1996 GENERAL DIVISION ) BETWEEN: ODELIA SANTOS Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 8 MAY 1997 MINUTE OF ORDERS The Court orders that the application be dismissed. NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 924 OF 1996 GENERAL DIVISION ) BETWEEN: ODELIA SANTOS Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 8 MAY 1997 REASONS FOR JUDGMENT TAMBERLIN J: This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 24 October 1996, holding that the RRT had no jurisdiction to review a decision of the Minister's delegate refusing an application for a protection visa. The basis of the decision was that the review application was out of time. The error of law alleged is that the RRT wrongly applied reg 5.03(1)(a) of the Migration Regulations ("the regulations") when it decided that the applicant was deemed to have received notice of the decision refusing a protection visa. The applicant's case is that she only became aware that her application for a protection visa had been refused when she received a letter from a compliance officer of the Department of Immigration and Ethnic Affairs ("the Department") on 30 August 1996, more than nine months after the letter was sent. Legislation Section 66(1) of the Migration Act (1958) ("the Act") requires the Minister to notify an applicant of a decision granting or refusing a visa. This must be done in the prescribed way. Regulation 2.16(1) provides: "2.16(1) For the purposes of subsection 66(1) of the Act ... , the Minister is to notify an applicant of a decision to grant or refuse a visa: (a) ..... (b) ..... (c) by sending a notice of the decision to, or leaving a notice of the decision at, the last address given to the Minister by the applicant under section 53 of the Act.... Section 53 of the Act is concerned with communications by the Minister with the applicant and relevantly provides: "53(1) A visa applicant is to tell the Minister the address at which the applicant intends to live while the application is being dealt with. (2) If the applicant proposes to change the address at which he intends to live for at least 14 days, the applicant must tell the Minister the address and the period of proposed residence.