SZOBI v Minister for Immigration and Citizenship & Anor [2011] HCATrans 347 (9 December 2011)

Last Updated: 13 December 2011

[2011] HCATrans 347

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S2 of 2011

B e t w e e n -

SZOBI

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 DECEMBER 2011, AT 3.50 PM

Copyright in the High Court of Australia

MR N.J. OWENS: If the Court pleases, I appear for the applicant with MR T.S. FRENCH. (instructed by Mr Nicholas Owens)

MR S.B. LLOYD, SC: If the Court pleases, I appear for the Minister with MR D.H. GODWIN. (instructed by DLA Piper Australia)

GUMMOW J: There is a submitting appearance from the Tribunal. Yes, Mr Owens.

MR OWENS: Your Honours, the issue raised by this application is whether a method commonly used by the Minister to notify visa applicants that their application has been unsuccessful is a method of notification that is authorised by the Migration Act. That is an important question because when an authorised method of notification is used, the Migration Act deems the visa applicant to have been notified of the Minister’s decision at a particular time regardless of whether, in fact, the decision has been brought to their attention.

GUMMOW J: So that 28-day period runs?

MR OWENS: It does, your Honour, yes. The date of notification exactly is important because the time period which cannot be extended runs from the date of deemed notification. Put more concretely, the issue in this case is whether the use of registered post conforms with the method set out in section 494B(4) of the Migration Act. Before turning to the particular words of that subsection, may I make three general points in relation to its construction.

First, it is perhaps to state the obvious to say that the purpose or object of section 494B is to specify various means by which the Minister may give a document to a person. That is, however, an important matter to bear in mind, in my submission, in construing the section. That is because it is not the purpose of section 494B merely to identify what I might call the minimum trigger for the operation of section 494C, which is the deeming provision. The various methods in 494B are intended to be effective means of notification and a construction that would render a specified method less likely to accomplish actual notification should not, in my submission, be a preferred construction.

Secondly, the legislative scheme treats proof of receipt or non-receipt by an applicant of a document as irrelevant to the commencement of the limitation period. The date upon which a visa applicant is notified of the Minister’s decision is determined by reference to section 494C and not by reference to the true facts. The use of the method of delivery that provides proof of receipt by an applicant cannot, therefore, be justified by reference to the legislative scheme as a whole.

The third and perhaps, most importantly, section 494B identifies four separate methods of delivery of documents. Two of those methods found in subsections (2) and (3) are concerned with handing a document to a person who, found in subsections (4) and (5), are concerned with sending a document to an address, either a physical address or an electronic one.

There is no overlap, in my submission, between the different methods, and each method has its own particular requirements in order to be effective. It will be my submission that the requirements of one particular method cannot be sidestepped by adding to or varying another method.

BELL J: So, is your submission that it is not that registered mail is not prepaid post; it is that it is not delivery to an address and that depends on the assertions found in Justice Bromberg’s judgment at paragraph 33. Is that right?

MR OWENS: Yes, if I can perhaps put it – that is the bottom line of where I am going. There is absolutely no dispute on our part that registered mail is prepaid post and even if were not prepaid post one might think we would struggle with the other words in subsection (b), namely other prepaid means. So I do not place any reliance on that.

The first point that I wish to make is that the words in subsection (4), namely “dispatching it” and then dropping down to subsection (c) to various specified addresses, the words “dispatching it” to an address, they must be construed against the backdrop of subsections (2) and (3). Subsections (2) and (3), in my submission, exhaustively state the means by which delivery to a person may be effected. Critically, both of those subsections require effective delivery to a person in order to be effective. In other words, the document must be, in fact, handed to a person.

If the words “dispatch to an address” in subsection (4) are construed to permit dispatch to a person at an address with delivery not to be effected except to a human being, in my submission, the result is to incorporate the fundamental element of the method of delivery in subsections (2) and (3), namely giving a document to a person but without any of the other requirements imposed by those subsections, including critically effective delivery.

In other words, that construction would permit the Minister to select a means of delivery that will not be effective unless the letter can be handed to a human being but which does not purport to comply with the requirements in subsections (2) and (3), and yet, gives the Minister the benefit of the method in subsection (4) which does not require an actual receipt by a person.

Now, it is submitted that that construction would undermine the careful legislative scheme which is set out in section 494B and, in particular, it would undermine the purpose of subsections (2) and (3). In effect, it would allow an ineffective notification under subsections (2) or (3) to become an effective notification under subsection (4).

So the first part of my submission is that the words “dispatch to an address” do not encompass or permit the imposition of a condition that a letter dispatched to an address should only be delivered into the hands of a human being and, if not, then it should be taken away.

The next point is that to hold that the words “dispatched to an address” encompass or permit the imposition of a condition of personal delivery is, in my submission, to make the means of notification specified in subsection (4) materially less effective. This is where the matters that your Honour referred to in Justice Bromberg’s judgment at paragraph 33 come into play. I do not need to know anything more – the Court does not need to know anything more about what registered post is, other than it is a method of delivery whereby a letter is taken to a house and it is not left or handed over unless someone is there to sign for it.

BELL J: I rather understand from your opponent’s submissions that it is suggested there is some factual issue that might be ventilated concerning registered post?

MR OWENS: That is suggested. It has not been articulated exactly what the nature of that factual inquiry would be or how there could possibly be any controversy about the very basic elements of registered post that I have just outlined. If nothing else, in addition to paragraph 33 of Justice Bromberg’s judgment, I do refer your Honours also to page 33 of the application book which is paragraph 2 of the plurality judgment.

If nothing else, I say it is possible to infer from the matters there stated, namely that, in this case, the evidence was that the envelope was, in fact, returned - there is no dispute about that and that it was returned with various handwritten notations on it specifically “C/L”, which the Minister submitted below meant “Card Left” and that seems to be a reasonable inference and “F/N” which the Minister submitted below was “Further Notification”. So in each case, I would say, you can infer from that that what happens is the letter is taken there, if no one is there it is taken back and a card is left saying do something to collect it.

GUMMOW J: What do you say about the meaning of “dispatch”?

MR OWENS: That is my third point, your Honour. I say that “dispatch” does not – what I say is “dispatch” is unconditional. One does not dispatch something if one says “I send it away but I keep a hand on it ready to pull it back if certain conditions are not met”. To say that you dispatch it to an address does not, in my submission, allow you to say, “I send it to an address but as I say, I keep my hand on it and if there is no person there willing to sign for it or available to sign for it, I take it back”. So that is the third point.

My entire argument really comes down to the words “dispatch to an address” in the section and for the reasons I have just given it is my submission that registered post does not comply with that. There was, therefore, an error of law in relation to the construction of 494B and there has been an error in the courts below in failing to identify that jurisdictional error.

GUMMOW J: The net result would be to encourage the Minister not to use registered post, would it not?

MR OWENS: Possibly. There are other methods able to be used but - - -

GUMMOW J: You could just ordinary post?

MR OWENS: Quite, but that is not a bad thing, your Honour, because the legislative scheme is this. If you want to make sure that a person gets it you use the method in (2) or (3). If you do not want to make sure a person gets it, you send it to their address where it sits in their letter box and they can get it when they get home from work or when they come back or whatever.

What this does is, as your Honour knows, you get those fairly cryptic cards in the post which you have to sift out from all the junk mail, understand what it is telling you to do and then try and get to a post office in business hours when you are usually somewhere else. There is nothing inherently beneficial about registered post, particularly, when, as I say, the method of delivery that provides proof of delivery serves no function whatsoever in this legislative scheme. Those are my submissions, your Honour.

GUMMOW J: Yes, thank you, Mr Owens. Yes, Mr Lloyd.

MR LLOYD: In relation to the, what I might call, registered post point, history of the legislation which we, perhaps, fairly lightly mention in our supplementary submissions, fits in this way, that Justice Einfeld found in a case called Singh that registered post was not sending it to an address – I should say, if the Court has a copy of the judgment of Justice McHugh, which was attached to our submissions, in Radojicic. The relevant legislation is in there. On page 5 of that, there was regulation 2.16 and at that time it required relevantly sending a notice of that decision to the last address.

Justice Einfeld had found that registered post was sending it to a post office and not to an address because it did not get left at the address, essentially, the same argument. The Minister was perturbed by that argument and sought to appeal the decision in Singh. While that happened, somebody else came to this Court in its original jurisdiction before Justice McHugh and said “I am relying upon Justice Einfeld’s decision to make out a – at least a reasonably arguable case that registered post does not meet the test”.

His Honour gave, we say, pretty cogent reasons for thinking that Justice Einfeld was wrong but, ultimately, was not prepared to say in light of the fact that a senior Federal Court judge had made that finding that it was not arguable even but his Honour was able to dismiss the case on a different and more limited ground.

Then, there was the Minister’s appeal from Justice Einfeld’s decision and the relevant passage from that is set out in paragraph 8 of our submissions. The Minister lost that appeal but won on the registered post point. So what is clear is that all the members of the Federal Court upheld the view that when it was sent, and I note that in paragraph 30 in the quote, “sent” is said to mean “dispatch”, and their Honours held that it was compliant with sections 66 and 53 and regulation 2.16 to send something by registered post.

What their Honours did go on to say, however, was because at that time the regulations said so long as the letter was sent within seven days of the date of the letter, it was deemed to be received on seven days after the date of the letter. The Full Court or majority of the Court said that that was unreasonable and they struck down the regulation. The Minister was then left in a position where he did not have the deemed receipt provision and then sought to re-enact it in the legislation which is being challenged now. I have here the extrinsic material, the explanatory memorandum to that - - -

GUMMOW J: What will that tell us?

MR LLOYD: Perhaps I can just tell you what it tells us is that it was the intention of the Minister, bearing in mind the Minister had opposed the idea that registered post did not constitute compliance with the section but then had won on the appeal on that point. It says:

The amendments contained in Schedule 3 to the Bill consolidate into the Migration Act provisions dealing with the giving and deemed receipt of documents. Most of these provisions are presently found in either the Migration Act or the Migration Regulations and essentially retain the status quo.

Now, the change was instead of sending it within seven days and being deemed to receive within seven days, it was sent within three days and then being deemed to be received within seven days. I accept that that were other minor changes but the critical point is that the word “sent” was changed to “dispatch” because “sent” was said to mean “dispatch” in this Court decision.

We say that there is no reason in the context of the history of this where one would generally construe legislation which has been reaffirmed by Parliament as having the same meaning that a court has found that it has and in the context of a minister who has challenged the idea that registered post does not fall within the provision, succeeds in having it found to fall within the provision and then has it re-enacted – or sends to Parliament and Parliament accepts legislation which uses the same terms - we say that the Court should not find that. There is then the question - - -

GUMMOW J: Wait a minute. You read the words “dispatching it to the last address” as, as it were, simply putting it in the postal system?

MR LLOYD: That is so. To a properly addressed letter which would have someone’s name on it. It would not say go to 2 Smith Street, it would go to - - -

GUMMOW J: To a particular address.

MR LLOYD: That is what we say about that. We also say in relation to the facts there were inquiries made when we went to the Full Court when this issue or a similar issue was raised in the Full Court about putting on evidence and we found it actually quite difficult to extract clear information from Australia Post as to how registered post works. Ultimately, we decided that we would just rely upon the fact that the applicants had not proved how it worked and that was successful in the Court of Appeal in relation to the notation point.

BELL J: Do I take it you accept the reference one finds in Justice Bromberg’s judgment to the circumstance that registered mail is not left at the address on the envelope - - -

MR LLOYD: We do accept that.

BELL J: Yes, so the point is still available to Mr Owens. Your point is dispatch by registered mail to the address, albeit you accept that if a person is not there to receive it, it does not remain at the address.

MR LLOYD: That is so. Although, as I understand it, at least one further attempt is made to deliver at the address, so to that extent, we say, not that we dispute what Mr Owen says is involved in registered post, we just do not say it is the whole picture. That is why we said - - -

GUMMOW J: Yes, if it was sent by ordinary mail to a house that had burned down, now wasteland, it would not matter, would it, if that was the last address provided? It would have been dispatched there?

MR LLOYD: That is so. I mean it is unambiguously the intention of this legislation, as it was under the last legislation, that actual receipt is not necessary. The only other thing I would say is about the notation point. We say there is nothing in section 494B that even mentions envelopes, let alone things on envelopes. If the envelope had just said the “Department of Immigration”, for example, there could be no objection. If it had had a Christmas greeting, there could have been no objection. If it had just had the return address, the applicant in the court below expressly said there would be no objection but they say that the expression “If not returned within 7 days please return to the sender at a particular address” they say it is objectionable.

The majority of the Full Court or at least the joint judgment at paragraphs 16 to 22 give six reasons for why that does not constitute any infringement of the Act. We would rely on all of them but principally, or at least most importantly, the fact that once it is accepted that some things could be put on envelopes then the question is have we put on something which would lead it – would lead the letter not to be dispatched?

It is put in my friend’s submissions as we imposed a condition but, we say, there is no evidence. That is what all of the judges in the court below found. There was not evidence that Australia Post pays any attention and, in fact, the evidence was that they did not pay any attention and they returned it when they felt like returning it rather than when we asked for it to be returned. May it please the Court, they are our submissions.

GUMMOW J: Yes, Mr Owens.

MR OWENS: If the Court pleases. The argument that I make is not the same as the argument that was accepted at first instance in Singh. Justice Einfeld’s decision was that registered post did not satisfy the legislation at the relevant time, not because it was not dispatched to an address but because it was dispatched to the wrong address. He said it was

dispatched to the post office rather than to the last notified address given to the Minister.

BELL J: You say notwithstanding the address on the envelope it is dispatched to a person because, whilst it goes to that address, if a person does not collect it, it does not remain at that address.

MR OWENS: Exactly, and the point is no case has considered the point that I make which is that subsection (4) must be construed against the backdrop of subsections (2) and (3) which specifically provide for a means of delivery to a person. In that context, subsection (4), in my submission, is a means whereby the Minister can send a letter, not to be handed to a person, but to go to an address. That is the critical point. Does the language in subsection (4) permit the addition of that sort of additional condition which, as I say, makes the prospect of receipt less likely to an actual person? Those are my submissions.

GUMMOW J: Counsel for the appellant has put all that could be put in favour of the construction of section 494B of the Migration Act 1958 (Cth) for which he contends. Nevertheless, there are insufficient prospects of success on an appeal to warrant a grant of special leave. Special leave is refused with costs.

We will now adjourn to Wednesday, 14 December at 2.15 pm in Canberra.

AT 4.13 PM THE MATTER WAS CONCLUDED