Zacovich, Shabnum v Minister for Immigration & Multicultural Affairs & Ors [1997] FCA 768

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 650 of 1997 ) GENERAL DIVISION )

BETWEEN: SHABNUM ZACOVICH

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

MICHAEL RADIN and

HARRY ALEVIZOS sitting as the Immigration Review Tribunal

Second Respondents

JUDGE: WHITLAM J PLACE: SYDNEY DATED: 15 AUGUST 1997

MINUTES OF ORDER

THE COURT DECLARES THAT:

1. The application for review of the decision made by Barbara Peters on 11 May 1995, which was given to the Immigration Review Tribunal by the applicant on 31 July 1995, was properly made under section 347 of the Migration Act 1958.

AND THE COURT ORDERS THAT: 2. The Immigration Review Tribunal continue and finish the review of that decision. 3. The first respondent pay the applicant's costs of this proceeding.

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 650 of 1997 ) GENERAL DIVISION )

BETWEEN: SHABNUM ZACOVICH

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

MICHAEL RADIN and

HARRY ALEVIZOS sitting as the Immigration Review Tribunal

Second Respondents

JUDGE: WHITLAM J PLACE: SYDNEY DATED: 15 AUGUST 1997

REASONS FOR JUDGMENT In this proceeding the applicant, Shabnum Zacovich, challenges the refusal of the Immigration Review Tribunal ("the IRT") to review a decision made by a review officer under Pt 5 of the Migration Act 1958 ("the Act"). The decision in question was made by the review officer on 11 May 1995 when she affirmed a primary decision refusing to grant Mrs Zacovich a visa. Mrs Zacovich's application for review by the IRT was received at its New South Wales registry on 31 July 1995. The IRT held that the application for review had not been made within the time prescribed by the Migration (Review) (1993) Regulations (the "1993 Review Regulations"). However, those regulations had been repealed by reg 40 of the Migration Reform (Transitional Provisions) Regulations (the "Transitional Provisions"), which commenced on 1 September 1994. It is conceded by the first respondent ("the Minister") that the IRT erred in that respect. The primary decision in Mrs Zacovich's case was made on 22 July 1994. Regulation 31(2) of the Transitional Provisionsprovides that a decision of a review officer affirming a primary decision made before 1 September 1994 is an "IRT-reviewable decision". Section 347(1)(b) of the Act requires an application for review of an IRT-reviewable decision to be given to the Tribunal "within the prescribed period". Different periods are specified in reg 4.10 of the Migration Regulations for different classes of IRT-reviewable decisions. In the case of a primary decision of the kind affecting Mrs Zacovich, the period within which an application for review must be given to the IRT is "28 days after the notification of the IRT-reviewable decision". Section 343 of the Act relevantlyprovides: "343. (1) When the review officer makes a decision, he or she is to notify the applicant of the decision in the prescribed way. (2) Notification of a decision to grant a visa must include the address of the Departmental office that is responsible for providing evidence of the visa. (3) Notification of a decision, the effect of which is to refuse to grant a visa, must: (a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa - specify that criterion; and (b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa - specify that provision; and (c) give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and (d) give notice: (i) that the decision can be reviewed; and (ii) the time in which the application for review may be made; and (iii) who can apply for the review; and (iv) where the application for review can be made. (4) ... (5) Failure to give notification of a decision does not affect the validity of the decision." The "prescribed way" was provided for at the time in reg 4.07 of the Migration Regulations as follows: "4.07 (1) A review officer must notify an applicant of a decision: (a) 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 (which deals with what an applicant must tell the Minister); or (b) by handing a notice of the decision to the applicant or a person specified by the applicant under subsection 53(4) of the Act. (2) ... (3) The review officer must notify the applicant not later than 10 days after making the decision." Section 53 of the Act 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. (3) If the Minister sends or leaves a notification to the applicant at the address for the applicant given under subsection (1) or (2), the notification is taken to have been received by the applicant even if it was not received. (4) An applicant may tell the Minister that a specified person at a specified address may be given notifications for the applicant about the applicant. (5) Subject to the regulations, only one person may be specified, under subsection (4), in relation to an applicant at any particular time. (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. (7) Subsection (6) does not prevent the Minister from communicating with the applicant, provided that the person specified under subsection (4) is notified of that communication. (8) If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them." Finally, and most importantly, it is necessary to notice the following provisions of regs 23 and 23A of the Transitional Provisions: "23. (1) This regulation applies to an application for an entry permit that: (a) was made on or after 19 December 1989 and before 1 September 1994; and (b) had not been finally determined before 1 September 1994. (2) An application to which this regulation applies is taken, on 1 September 1994, to be: (a) if the application was for a temporary entry permit - an application for a transitional (temporary) visa; or (b) if the application was for a permanent entry permit - an application for a transitional (permanent) visa. (3) An application that, under subregulation (2), is taken to be an application for a transitional visa is to be decided according to the criteria that applied to the entry permit for which application was made. (4) ... (5) ... (6) A transitional (permanent) visa that is granted to a non-citizen on the basis of an application to which this regulation applies is a visa: (a) to travel to and enter Australia for a period of 3 years from the date of grant; and (b) to remain in Australia permanently; and (c) that is subject to the conditions (if any) that the Minister imposes, being conditions that the Minister could have imposed if the application had been decided under the old Act and Regulations as in force at the date of the application. (7) ... (8) Subdivision AB of Division 3 of Part 2 of the amended Act: (a) does not apply to an application referred to in this regulation; and (b) applies under section 342 of the amended Act to an application for review of a primary decision in respect of an application referred to in this regulation only if the review application is made on or after 1 September 1994. 23A. In the case of an application to which regulation 21, 22 or 23 applies, if it is a criterion for the grant of the visa or entry permit applied for that an applicant must comply with public interest criterion 4007 or 4008, those criteria apply as they are in force on 1 September 1994." Against that statutory background it is now convenient to consider the facts in the present case. These "facts" have, strictly speaking, not been proved before me but they appear sufficiently from the material that was before the IRT and from its reasons. The parties have informed me that the essential facts are not in dispute. On 18 April 1994 Mrs Zacovich applied for a permanent entry permit on the basis that she was the spouse of an Australian citizen, Orlando Zacovich. On 22 July 1994 a delegate of the Minister refused the entry permit. On 23 August 1994 Mr Zacovich applied for internal review of that decision. As I have already mentioned, on 11 May 1995 the review officer affirmed the primary decision. The review officer gave notice of her decision by posting it in an envelope addressed to Mr Zacovich at the residential address provided by him in his application for review. The document was sent by certified mail on 11 May 1995. Certified mail is, of course, used to provide proof of posting and delivery. The envelope was endorsed "If not delivered within 7 days, return to Migration Internal Review Office" and the endorsement contained a private box number address. Notwithstanding the request in the endorsement, postal officers attempted to effect delivery up until 7 June 1995, after which date the article was returned to the sender. The document was not delivered to Mr Zacovich or to anybody else. It does not appear when was the first time Mrs Zacovich actually received written notice of the review officer's decision. But she seems to have first learnt that the internal review application had been unsuccessful on 24 July 1995 when she was interviewed by officers of the Department of Immigration and Ethnic Affairs at Parramatta. Seven days later, on 31 July 1995, she lodged her application for review by the IRT. Under the 1993 Review Regulations that were in force on 23 August 1994, Mrs Zacovich was not entitled to apply for internal review, but Mr Zacovich was entitled to do so in his capacity as a nominating spouse. As Mr Zacovich was the applicant for internal review under those regulations, the Minister submits that he is the "applicant" to be notified under s 343(1) of the Act. Since 1 September 1994 internal review has been provided for in Div 2 of Pt 5 of the Act, comprising ss 338-345. Under s 339(2) of the Act an application for internal review may only now be made in a case such as that of Mrs Zacovich by the non-citizen who is the subject of the visa refusal decision. The word "applicant" in subs 343(1) must be construed in that context. The same word is also used in par (a) of subs 343(3) in relation to "a criterion for a visa". That is hardly an apt way to describe a nominating spouse who was merely the applicant for internal review. In any event, the review officer was not dealing with an application made under s 339 of the Act. Mrs Zacovich's application for an entry permit had not been "finally determined before 1 September 1994" within the meaning of par (b) of subreg 23(1) of the Transitional Provisions. At that date the primary decision was still subject to review: see s 4(12) of the Actas in force immediately before 1 September 1994. Accordingly, under subreg 23(2) her application was taken to be an application for a transitional visa, and it is that application that the review officer had to decide under subreg 23(3). It is not to the point that the application for review of the primary decision was made by Mr Zacovich. The applicant is clearly identified in reg 23A. Section 342 of the Act applies the code of procedure in Subdiv AB of Div 3 of Pt 2 of theAct to an internal review. However, by virtue of subreg 23(8)(b) of the Transitional Provisions the code does not apply in the present case since the review application was made before 1 September 1994. Section 53 of the Act, which is referred to in reg 4.07(1) of the Migration Regulations, is part of that code. Section 347 of the Act deals with the applications for review by the IRT. Under subs 347(2) such an application can only be made in the instant case by Mrs Zacovich. It would be extraordinary if the time limit fixed by par (b) of subs 347(1) for giving the application for review to the IRT was to be construed as fixing a period by reference to a number of days "after the notification of the IRT-reviewable decision" to someone other than the person entitled to make that very application. It follows that I reject the Minister's submission and hold that the review officer was obliged under s 343(1) of the Act to notify Mrs Zacovich of her decision. Even if I am wrong and Mr Zacovich is the "applicant" for the purposes of s 343(1), it will make no difference in the present case. Neither one of them was, in fact, given a copy of the decision. Section 53 of the Act has, on any view, no application in the present case and the Minister cannot rely upon s 53(3). The only "way" of notification prescribed by reg 4.07(1) of the Migration Regulations that could have been utilized in the present case was "handing notice of the decision to the applicant". That was not done. If the view were taken that there was no specifically "prescribed way" of notification in the circumstances of the present case because the internal review was not undertaken following an application made under s 339 of the Act, there would still need to have been a "notification" for the purposes of s 347(1)(b) of the Act. The Minister could not assert any deemed service by post in reliance upon ss 28A and 29 of the Acts Interpretation Act 1901 since it has been proved that the document sent on 11 May 1995 was not delivered at all. The result is that, in my opinion, Mrs Zacovich's application was properly made under s 347 of theAct and the IRT must review the decision made on 11 May 1995. When this proceeding was commenced, the application invoked the jurisdiction of the Court under Pt 8 of the Actand under s 39B of the Judiciary Act 1903. The relevant jurisdiction under Pt 8 is in respect of "decisions" of the IRT. Such a decision involves a case being disposed of in one of the ways provided for in s 349(2) of theAct. That has not happened in the present case because the IRT declined to continue and finish the review. Accordingly, I do not think that the jurisdiction under Pt 8 arises. However, the Court has jurisdiction to deal with the IRT's refusal to review the decision under s 39B of the Judiciary Act and perhaps under the Administrative Decisions (Judicial Review) Act 1977: Makisi v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 420. Appropriate orders can also be made under s 21 of the Federal Court of Australia Act 1976. The members constituting the IRT have been joined as respondents. On the first day of the hearing the solicitors appearing for both Mrs Zacovich and the Minister, apparently under the misapprehension that the Court was exercising jurisdiction under Pt 8 of the Act, asked that those parties be removed: see Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695. That is not now an appropriate order. The members of the IRT have entered a submitting appearance. I shall make orders declaring the application for review by the IRT to have been properly made and requiring the IRT to continue and finish the review. Any necessary reconstitution of the IRT will be a matter for the Principal Member. The Minister must pay Mrs Zacovich's costs. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam