IN THE HIGH COURT OF AUSTRALIA RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ORS EX PARTE RADOJICIC REASONS FOR JUDGMENT Judgment delivered at Sydney on Friday 21 January 2000 RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ORS; EX PARTE RADOJICIC REASONS FOR JUDGMENT McHUGH J 21 JANUARY 2000 RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA; EX PARTE RADOJICIC ORDER 1. Application dismissed with costs. 2. Certify for counsel. RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ORS; EX PARTE RADOJICIC The applicant seeks orders nisi in respect of three prerogative writs. The first order nisi is directed to The Minister for Immigration and Multicultural Affairs ("The Minister") calling on him to show cause why a writ of prohibition should not issue out of this Court prohibiting him from proceeding further or acting upon a decision of the second respondent, described as "John Godfrey sitting as the Refugee Review Tribunal", made on 30 March 1999. That decision determined that the Refugee Review Tribunal ('the Tribunal") had no jurisdiction to review a decision of a delegate of the Minister who had held that the applicant was not a refugee. The second order nisi is directed to the third respondent, described as "John Godfrey in his capacity as acting Principal Member of the Refugee Review Tribunal", calling upon him to show cause why a writ of certiorari 1 As has been pointed out more than once in this and other Courts, where a prerogative writ is sought against an order of a tribunal or public official, the respondent should be the tribunal or ublic office, not the person who constituted the tribunal or held he office at the time that the order was made. That is because the order is the order of the tribunal or public office, not the order of the person who constituted the tribunal or happened to hold the public office at that time. When the order is directed to the tribunal or public office, any person or persons constituting the tribunal or holding the public office at any relevant time must give effect to the prerogative writ. See eg Tapping on the High Footnote continues should not issue to remove the decision into this Court for the purpose of quashing it. The third order nisi is also directed to the third respondent, and seeks the issue of a writ of mandamus directing him to appoint a member of the Tribunal to re-determine the applicant's application for a protection visa according to law. The issues in this case are whether the applicant has made out an arguable case for both of the following propositions: 1. That the Tribunal erred in law or fact in holding that in the circumstances of the case the Migration Act 1958 (Cth) ("the Act") and the Migration Regulations 1994 ("the Regulations") made under it had the effect of deeming the delegate's decision to have been received by the applicant by 28 December 1998; and 2. That the error was a matter which went to the jurisdiction of the Tribunal. In my opinion, the applicant's claim for relief must be refused. Prerogative Writ_of Mandamus (1848 at 311-312; Brown v Rezitis (1970) 127 CLR 157 at 169; Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721 at 724. Even if the Tribunal erred in its conclusion that the Act and the Regulations deemed the relevant documents to have been received by the applicant by 28 December 1998, the error was an error made within jurisdiction and was not an error which attracts this Court's jurisdiction under s 75(v) of the Constitution. The factual background On 21 December 1998, a delegate of the Minister refused to grant a protection visa to the applicant. On 22 December 1998, according to the labels and annotations on a letter set out in an exhibit to an affidavit of Mr G J Peek, filed on behalf of the Minister, a copy of the reasons for decision of the delegate was sent by certified mail to the applicant and to his migration agent at the addresses nominated by the applicant in Part B of his application for a visa. The address nominated by the applicant was his home address in Liverpool; the address nominated for the migration agent was a post office box rented by the Canterbury-Bankstown Migrant Resource Centre where the agent works in a full-time capacity. On 6 January 1999, the copy of the decision which had been sent to the agent was returned to the Department of Immigration and Multicultural Affairs ("the Department") bearing a handwritten notation "Unknown at that address - RTS". In an affidavit filed in the present proceedings, the agent states, as plainly appears to be the case, that he did not receive a copy of the decision. He asserts that the post office box to which the decision was allegedly sent was checked regularly by employees of his organisation, that a record is kept of all mail received by the organisation and that it has no record of receiving the decision of the delegate. On 2 February 1999, the applicant received a second and final advice slip from the Liverpool Post Office requesting him to pick up a registered letter. He collected the letter on the same day and found that it included the decision of the delegate. The applicant has sworn that, while he keeps his mailbox locked and has the only key, he did not receive a first advice slip. However, it appears (somewhat obliquely) from par 5 of the affidavit of the migration agent that the records of Liverpool Post Office indicate that a first advice slip was sent to the applicant about six weeks prior to the second advice slip being sent. On 17 February 1999, the applicant lodged with the Tribunal an application for review of the delegate's decision. On 30 March 1999, after receiving written submissions from the applicant's agent, the Tribunal held that it had no power to review the decision. The Tribunal held that the application for review had been made out of time because the applicant had not lodged the application for review within 28 days of the date on which he was deemed by the Regulations to have been given notice of the decision. The applicant had therefore failed to comply with s 412(1)(b) of the Act, which requires an application for review to "be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision." The period prescribed for the purposes of this provision, in the circumstances of this case, is 28 days?. The _effect_of the provisions deeming the decision to have been received Section 66(1) of the Act requires the Minister to notify the applicant of a decision refusing to grant a visa. It provides that "[w]hen the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way." Regulation 2.16 sets out the prescribed way of giving notice of a decision to refuse or grant a visa. It provides: "(1)_ For the purposes of subsection 66 (1) of the Act (dealing with giving notice of decisions), the inister is to notify an applicant of a decision to grant or refuse a visa: (c) by sending a notice of the decision to, or leaving a notice of the decision at: (i) the last address given to the Minister by the applicant under subsection 53 (4) of the Act; or (ii) if. the applicant has not given to the Minister an address under that subsection, the last address given to the Minister by 2 Reg 4.31(2)(b). (d) Regulation 5.01 provides that a "document" includes, inter alia, a "notification ... if it is in writing". document to have been received by the applicant 7 days after the date of the document, provided that it is sent within 7 days of the the applicant under subsection 53 (1) or (2) of the Act; or by handing a notice of the decision to the applicant or a person specified by the applicant under subsection 53 (4) of the Act. date of the document. It relevantly provides: "(1A) This regulation applies to a document sent by the (1) (2) Section 53(3) provides that, "[i]f 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 Minister, a Tribunal or a review officer to an applicant, of any kind, under the Act or these Regulations. For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the applicant at the time that the document is taken to be received at the address to which the document is sent, which is either: if the document is sent from a place in Australia to an address in Australia — 7 days after the date of the document; or Sub-regulation (1) does not apply to a document unless it is sent within 7 days after the date of the document." received by the applicant even if it was not received." Regulation 5.03 deems a The exhibit to Mr Peek's affidavit seems to provide conclusive proof that, on 22 December 1998, a copy of the decision was sent (in the sense of placed in the post) to the last addresses notified to the Minister and that the Minister complied with the obligation imposed upon him by s 66(1) and reg 2.16(1)(c). Because the decision was sent (in the sense of placed in the post) within 7 days of the date of the document, sub-reg 5.03(2) appears not to apply and sub-reg 5.03(1) appears to operate with the effect that notification of the decision is taken to have been received by the applicant 7 days after the date of the document (21 December 1999) ie by 28 December 1999. Moreover, because the decision was sent to the address given to the Minister under s 53(1), s 53(3) appears to deem the notification to have been received even if it was not. However, the applicant says that this is to misconceive the correct construction of s 53(3) and reg 5.03. He contends that the decision of Einfeld J in Singh v Minister for Immigration and Multicultural Affairs® establishes that a document sent by registered or certified mail is not "sent" within the meaning of s 53(3) and reg 5.03 because it is sent to a Post Office for collection by the addressee and not to "the last address given to the Minister. The 3 [1999] FCA 613. 4 Reg 2.16(1)(c)(i). applicant is clearly right when he submits that that is the effect of Singh. It follows that, unless | am convinced that that decision is plainly wrong — indeed not even arguably correct — the applicant has made out the first limb of his argument in support of the orders nisi. If Singh applies, the Tribunal erred in holding that the applicant had filed his application for review more than 28 days after he was deemed to have been notified of the decision of the delegate. With great respect to Einfeld J, | think that his reasoning in Singh is open to criticism and that the decision is probably erroneous. In Singh, the Minister had sent the notification of the decision by registered mail to the applicant for a visa. The letter was addressed to the applicant at the address last given to the Minister. In accordance with its usual course of business, Australia Post sent the letter containing the notification to the post office branch nearest to the address of the addressee, where it was retained. Ordinarily a card would be immediately sent to the addressee at his or her home address, requiring the collection of the letter from the post office within a certain time. The evidence in Singh disclosed that the branch misplaced the letter and that about two months elapsed before it was located and a card sent to the applicant. Einfeld J held that the notification had not been sent to the applicant at the address given by the applicant under s 53(1) or 53(2), but instead had been sent to the applicant's nearest post office. Einfeld J held that in these circumstances s 53(3) did not apply. Moreover, his Honour held that reg 5.03 did not apply because reg 5.03(1A) makes reg 5.03 applicable only when the document has been sent ... to an applicant at the address given to the Minister under s 53(1) or s 53(2) (as opposed to it being sent to the applicant's nearest post office). His Honour said®: _ "It is well established that apparently harsh restrictive laws which bear down on the rights of people must be interpreted strictly in accordance with the apparent legislative intention: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of axation (1981) 147 CLR 297 at 320; Chun Wang v Minister for Immigration & Multicultural Affairs (Federal Court, Merkel J, 13 February 1997 unreported); Shrestha _v Minister for Immigration &_ Multicultural Affairs (Federal Court, Sackville J, 13 October 1997 unreported); Minister for Immigration & Multicultural Affairs v Ozmanian (1996) 141 ALR 322 at 345. The combination of section P3(8) and regulation 5.03 appears to deem conclusively that a notification sent within 7 days of the date it bears is received on the 7th day even if it was not posted until the very end of the 7th day so that it cannot be received within the 7 day period, and even if it can be definitively established that it was not received at all, at any time. Having in mind that the substantive issue at stake may be the life or freedom of the individual concerned, such a potentially harsh provision should be scrutinised carefully to ascertain the true legislative intent. Justice Sackville observed in Ozmanian that this intention was the achievement of what is seen by the authorities as 'the requisite expedition and certainty in the review process. If so, an extension of a day or a week, or even a month or two in some cases, could hardly be described as disrupting the desired efficiency." 5 [1999] FCA 613 at pars [10] and [11]. 10. In my opinion, however, and with the greatest of respect to Einfeld J, to hold that a registered letter that is addressed and posted to a person at "the last address given to the Minister" is not sent to that person at that address is to disregard the language and the evident intention of s 53(3) of the Act which "is designed to prevent disputes as to non receipt of notifications"®. Sending a notification implies the use of an agent or agents to carry out the task. To send something is fo cause it to be conveyed or transmitted to a person at a destination'. If the Minister take steps that would ordinarily have the effect of getting the notification to the applicant if the applicant was at the address last given to the Minister, it seems to me that the Minister has sent the notification to the applicant at the address last given to him or her. When a question arises whether a notification has been sent to the last address of a person for the purpose of reg 2.16, reg 5.03 or s 53(3), the question must be looked at in terms of what the Minister did at the time that the notification left his or her custody. If, at that moment, it can be said that the Minister caused the notification to be conveyed to the applicant at "the last address given 6 Santos v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 229 at 232. 7 The Macquarie Dictionary, 1st ed (1981) at 1567. 11. to the Minister", the Minister has complied with the obligation imposed by s 66(1). What happens thereafter to the notification is immaterial. The Minister may have given the notification to a messenger to be handed to the addressee or to a courier for delivery to that person or put it in a letter box for delivery in the ordinary course of the post. The notification may not have arrived or may have arrived much later than expected. However, the form of delivery adopted or its success or failure is irrelevant once it can be said that the Minister has caused the notification to be conveyed or transmitted to the applicant for a visa at "the last address given to the Minister". If that has been done, the manner of transmission or the receipt or time of receipt is not a matter which affects the carrying out of the Minister's obligation. So the question in a case like the present is whether the Minister has failed to convey or transmit the notification to the applicant at the last address given to the Minister merely because, in the ordinary course of Australia Post's business, a card will be sent to the applicant at that address requesting the applicant to collect the letter notification at the post office branch. If in those circumstances the Minister has failed to do so, s 53(3), reg 2.16 and reg 5.03 have the surprising effect that, for the purpose of those provisions, a letter sent by ordinary post or delivered by courier is sent but a letter sent by registered post or certified mail is not. Moroever, the construction that Einfeld J placed on s 53(3), reg 2.16 and reg 5.03 in Singh leads to an even stranger result in the case of a registered letter addressed to a person at a post office box, as was the case of the 12. registered letter sent to the migration agent for the present applicant. In such a case, a card, and not the registered letter, is placed in the box, the letter being held in the post office safe or other place of safe custody until signed for and collected over the counter. If Singh is correctly decided, it must follow that a registered letter addressed to a box number is not sent to the post office box but to the post office and that the Minister is in breach of the duty imposed by s 66(1). It means also that even if the letter actually reaches the recipient, the Minister has breached the duty imposed on him by s 66(1) of the Act. | find it hard to believe that the legislation was intended to produce the result that a notification by registered mail that is addressed and posted to an applicant at the address last given to the Minister is not sent to that person at that address. My disbelief is strengthened by a series of earlier decisions in the Federal Court on the effect of reg 5.03 in relation to the time limit in s412(b) — see Shrestha v Minister for Immigration and Multicultural Affairs®, Dawai v Minister for Immigration and Multicultural Affairs®, and Santos v Minister for Immigration and Multicultural Affairs'°. In none of those decisions do judges of the 8 [1997] 1051 FCA. 9 [1997] 25 FCA. 10 (1997) 144 ALR 229. 13. Federal Court draw a distinction between sending a notification to the applicant's address and sending it to the applicant's local post office branch. EinfeldJ thought that these decisions were distinguishable'', but | cannot see any distinction in principle. Einfeld J also thought that the decision of Full Court of the Federal Court in Sook Rye Son v Minister for Immigration and Multicultural Affairs' supported the distinction which he drew between transmission to the address and transmission to the post office to be collected after a card is sent to the address**. However, Sook Rye Son" dealt with the applicability of reg 5.03 to s 426 and the cases dealing with applicability of reg 5.03 to s412(b) were expressly distinguished*®. Nevertheless, notwithstanding my doubts as to the correctness of the decision in Singh, it is the decision of an experienced judge of the Federal Court. It is a large proposition to say that a decision given by a judge of a superior court of record is not even arguably correct, and, although | think it most unlikely that 11 [1999] FCA 613 at [20]. 12 [1999] FCA 7. 13 [1999] FCA 613 at [19]. 14 [1999] FCA 7. 415 [1999] FCA 7 at [14]. 14. the construction which Einfeld J has given to s 53(3) and reg 5.03 would be accepted by a majority of the Full Court of this Court, | think that his decision compels me to say that the applicant's contention is arguable. That being so, the applicant has made out the first limb of his application for the orders nisi. Did the time limit go to the Tribunal's jurisdiction ? As | have pointed out, the Tribunal held that it could not hear the application for review of the delegate's decision because the application was not filed within 28 days of the applicant being notified of the delegate's decision, and the requirement in s 412(1)(b) was therefore not met. Section 412(1) of the Act provides: "(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 rescribed, being a period ending not later han 28 days after the notification of the decision; and (c) be Frcompanied by the prescribed fee (if any). Section 414 of the Act provides that: "(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT- reviewable decision, the Tribunal must review the lecision. 15. (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3)." If the Tribunal was wrong about the effect of reg 5.03 and s 53(3), and the correct view is that expressed by Einfeld J in Singh, it does not follow that the Tribunal acted beyond jurisdiction in holding that the application for review by the Tribunal was filed more than 28 days after the applicant had received notification of the delegate's decision. Speaking generally, the basic theory of the common law is that limitations for commencing actions are not matters going to jurisdiction and that, even when an action is commenced outside a period specified for the commencement of the action, the court or tribunal hearing the action has jurisdiction to determine whether it was commenced within time. Thus, any error as to whether an action was or was not commenced within time is an error within jurisdiction and not jurisdictional error. In days gone by, the error could be remedied by the writs of error and certiorari. Today, appeal is the appropriate remedy although, subject to a statutory provision to the contrary, certiorari still lies. But, speaking generally, an error concerning the construction or application of a time limitation is not a matter going to jurisdiction. That being so, it is not a matter attracting the writs of prohibition or mandamus. 16. In Parisienne Basket Shoes Pty Ltd v Whyte'®, this Court had to determine whether justices were acting within jurisdiction when they dismissed an information on the ground that it was not "laid within two months" of the commission of an offence, as required by $ 229(a) of the Factories and Shops Act 1928 (Vic). The Court held that the justices had jurisdiction to determine whether the information was laid within the statutory period or not and that, if they made an erroneous decision in doing so, they were acting within their jurisdiction and that prohibition would not lie against them. Dixon J said'": "The limitation of time for laying an information is not a limitation upon the jurisdiction of the court or tribunal before whom the charge comes for hearing. The time bar, like any other statutory limitation, makes the proceedings no longer maintainable, but it is not a restriction upon the power of the court to hear and determine them. It is not true that because an information is in fact laid out of time, the Court of Petty Sessions is powerless to deal with it. Whether or not an information was laid too late is a question committed to their decision; it is not a matter of jurisdiction." Similarly, in the present case, the Tribunal had jurisdiction to determine whether the application for review was made within 28 days of the applicant having received notification of the decision of the Minister's delegate. Determining that issue involved an 16 (1938) 59 CLR 369. 17 (1938) 59 CLR 369 at 388-389. 17. examination of the facts of the matter and the application of the provisions of the Act and Regulations to those facts. It is impossible to say that the Tribunal had no jurisdiction to examine those facts or construe and apply the Act and Regulations. That being so, even if the Tribunal erred in its conclusion, it was acting within its jurisdiction. Neither prohibition nor mandamus will lie against it. Nor does this Court have any jurisdiction to issue certiorari otherwise than as incident of the jurisdiction expressly conferred upon it by or pursuant to ss 75 and 76 of the Constitution. It follows that the applicant has failed to make out a case for the grant of the orders nisi sought. Order The application is dismissed with costs. | certify for counsel. This page and the preceding seventeen pages constitute my reasons for judgment in Re Minister for Immigration and Multicultural Affairs & Ors; Ex parte Radojicic