Rao v Minister of Immigration [2015] NZHC 2669 (30 October 2015)

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UNDER	section 245 of the Immigration Act 2009
IN THE MATTER	of an application for leave to appeal against a decision of the Immigration and Protection Tribunal
BETWEEN	ANISH ASHNIL RAO Applicant
AND	MINISTER OF IMMIGRATION Respondent

Hearing:	30 September 2015
Counsel:	R Woods for Applicant D Soper for Respondent
_Judgment:	_{30 October 2015}

[1] Mr Rao is subject to a deportation order. His appeal to the Immigration and Protection Tribunal (the Tribunal) was unsuccessful.¹He has filed an application for leave to appeal to this Court. The respondent contends it is out of time. The parties agree that if it is out of time, there is no power in the Court to extend the time in which to seek leave. Accordingly, the timing issue is being dealt with as a preliminary point.

15 May 2015. A copy of the judgment, with a covering letter, was consigned that same day, via courier, to Mr Rao’s counsel, Mr Woods.

[3] There is no record of the address on the courier package. The address on the covering letter inside the envelope was:

18 May 2015 at 8.08 am. It was signed for by “Kate”. Mr Woods’ business premises were not open at the time. There is no one named Kate associated with his business. There are other businesses that share Level 1.

[5] As it happens some time during the day the package ended up in Mr Woods’ offices. Its receipt was logged into the office system in the afternoon. The envelope was opened and the letter and judgment placed on Mr Woods’ desk. Because he was away, Mr Woods did not see it until 23 May 2015.

[7] Section 245(2) of the Immigration Act 2009 (the Act) provides that an application for leave to appeal must be filed no longer than 28 days:

after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing.

[8] It is common ground that if Mr Rao is taken to have been notified of the decision on 18 May 2015 when the courier delivered it or when it reached Mr Woods’ offices, the application is out of time. If Mr Rao was not notified on that date then the statutory default date is seven days after the package was given to the courier. Again it is common ground that if this is the date, the application is in time.

[9] As will be seen the Act provides a process for giving notices. Compliance with the process brings into play a deemed date on which it can be said notice has been given. On the other hand, in this case notice has apparently been actually achieved but arguably not in a way that complies with the Act’s processes. The appellant argues that the statutory processes establish the only means by which notice can be given, and that actual notice being achieved outside those processes is to be ignored.

[10] This submission could only be correct if the proper interpretation of the statute demands such a reading. Otherwise, the obvious answer is that the aim of the provisions is to achieve notice and that is what has happened. Where actual service of the correct notice documentation can be proved, common sense and policy suggest that should be the relevant date.

[11] Decisions in other areas have reached that outcome. Commissioner of Inland

Revenue v Sea Hunter Fishing Limited considered the effect of s 14(2) of the Tax

(2) Any notice sent by post to any person, or to any other person authorised to act on behalf of that person, shall be deemed to have been received by that person, or that other person, when in the normal course of post it would have been delivered.

[12] The purpose of the provision was plainly to provide a deeming date from when time could be taken to run. Of this provision the Court of Appeal observed:³

[21] ... There is a contrast with sending by post, to which subs (2) applies. Then the notice is deemed to have been received when in the normal course of post it would have been delivered. If the notice actually arrives faster than the normal course of post it would be given upon arrival. Otherwise, the deeming provision, which is based on an estimate of when delivery would normally be expected, is to apply.

[13] ANZ National Bank Ltd v Tower Insurance Ltd involved a different context, namely the interpretation of a service provision in a contract.⁴The parties were in dispute as to whether strict compliance was needed. The Court of Appeal focussed on the purpose of the contractual provision, and concluded that proof of actual service, even if effected by a method other than that stipulated, was sufficient. It noted that this conclusion was consistent with the trend of modern appellate authorities on the point.⁵

[14] Against that background I turn to the provisions of the Act, noting that the task is to interpret the statutory text in light of its purpose.

[15] The Tribunal is obligated by cl 17 of sch 2 of the Act to notify an appellant of its decision, and provide a copy of it to the appellant. Section 386A of the Act applies generally to circumstances where there is an obligation to serve a notice or document, or to supply, notify or give such notice or document. Section 386A(3) deals with notification (as opposed to service) obligations. It requires the notice to be in writing. The notice must be:

[16] Here Mr Rao had signed an authority nominating Mr Woods to be the recipient of communications on his behalf. The Act says that in such situations the contact address is either the postal address or an electronic address. Although Mr Woods had provided both, the postal address was used.

[17] Returning then to s 386A of the Act, and reading into it a definition of registered post from elsewhere in the Act, the notice obligation is:

to send the notice to the physical address using a postal or courier service being a service that records delivery to the address.

Consistent with that, the Tribunal used a courier service where a signature of receipt was required. It is just that on this occasion the person signing had no connection at all to the intended target.

[18] The last provisions of the Act to note are ss 386A(4) and (6) which provide:

(4) A notice or document served or sent by registered post is deemed to be received by the person to whom it is addressed, –

(a) if the address is in New Zealand, 7 days after the date on which it was sent; and

(b) if the address is outside New Zealand, 14 days after the date on which it was sent.

(6) Subsection (4) applies unless the intended recipient proves that he or she did not receive the notice or document and the failure to receive it was not a result of fault on his or her part, and–

(b) the address to which the notice or document was sent is an address outside New Zealand.

[19] To summarise the Act as it applies to the present facts, the obligation on the

Tribunal was to send a hard copy of the judgment, together with a written notice of

the result, to Mr Wood’s business. This was to be done by registered post or courier, i.e. a method requiring the recipient to sign for it. If this method was used, service is deemed to be effected after seven days of handing the documents to the courier.

[20] Although interesting issues potentially arise as to whether the Act’s processes are complied with when an unknown person signs for the package, the only matter needing resolution here is whether actual service, however achieved, starts time running from that moment. If timing is governed by the statutory process, this appeal is in time whether or not the Act was complied with.

[21] The processes for service or notification appear in pt 11 of the Act, Miscellaneous provisions. That part does not have its own purposes provision, and the Act’s general purposes do not particularly shed light on this narrow process issues. Structurally the Act draws a distinction between obligations to serve a document on the one hand, and on the other, obligations to supply or notify. The same method is provided for each, except that where the obligation is to serve and the recipient is a lawyer or agent, a personal signature from the lawyer or agent accepting service is required.

[22] The best point favouring the appellant’s case is the use of “must be sent”. That obviously suggests a mandatory aspect, but it is possible to link the mandatory aspect to the immediately following deeming provision – that method must be used if the deemed date is to apply.

[23] In the end one must come back to the apparent purpose of the provisions. At the general level that aim seems to be to prescribe a method that can be relied upon to achieve notice being given; at the more specific level it seems to be to provide a methodology that allows a deeming provision to take effect, so that time will run. It is important to recall that the particular statutory method has no intrinsic value or significance. It is not an end in itself but is purely functional. Other methods could have been chosen, and indeed email suffices. It seems difficult to infer there is any magic or intrinsic importance in the method. Rather, the key issue is when service is either achieved or deemed to be achieved.

[24] I accordingly conclude that where, as here, extrinsic evidence establishes when notice was actually given, and as here the form of the notice complies with the requirements of the Act, time runs from that point. It follows that Mr Rao’s application for leave to appeal is out of time, and must be dismissed.

High Court of New Zealand Decisions

Rao v Minister of Immigration [2015] NZHC 2669 (30 October 2015)