Case: Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 ; (2003) 134 FCR 308
Outcome: considered
Subsequently, in Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 ; (2003) 134 FCR 308 at 319 [39] Gray J held that s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 of the Evidence Act 1995 provided that the calculation of any relevant period by reference to which a document may be presumed to have been served under either of those enactments was to be addressed by reference to the date of posting, and not the date borne by the document. Thus s 29 of the Acts Interpretation Act 1901 provides that there is a presumption, unless the contrary is proved, that a letter addressed to a person for which the postage was prepaid and which is posted, is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of the post. Moreover, s 29(2) preserves the operation of s 160 of the Evidence Act 1995 (Cth). The latter provision creates a presumption, unless evidence sufficient to raise a doubt about the presumption is adduced, that a postal article, sent by pre-paid post addressed to a person at a specified address in Australia, was received at that address on the fourth working day after it having been posted. 25 Gray J did not refer to, nor was I referred to, s 163 of the Evidence Act 1995 which makes special provision for the proof of letters sent by Commonwealth agencies. It provided as to a letter from a Commonwealth agency (until the definition of 'Commonwealth agency' was removed from the section and a substituted definition placed in the Dictionary of the Act by the Law and Justice Legislation Amendment Act 1999 (Cth) as from 13 October 1999 when it received the royal assent (see ss 2(1)) as follows: '(1) A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared. (2) In this section: "business day" means a day that is not: (a) a Saturday or a Sunday; or (b) a public holiday or bank holiday in the place in which the letter was prepared; "Commonwealth agency" means: (a) a Department within the meaning of the Public Service Act 1922; or (b) a House of the Parliament; or (c) a person or body holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or (d) a body or organisation, whether incorporated or unincorporated, established for a public purpose: (i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or (ii) by the Governor-General; or (ii) by a Minister; "letter" means any form of written communication that is directed to a particular person or address, and includes: (a) any standard postal article within the meaning of the Australian Postal Corporation Act 1989 ; and (b) any envelope, packet, parcel, container or wrapper containing such a communication; and (c) any unenclosed written communication that is directed to a particular person or address. Note 1: The NSW Act has no equivalent provision for section 163. Note 2: Section 5 extends the operation of this section to proceedings in all Australian courts.' 26 The Tribunal is a Commonwealth agency, being a body exercising power under a law of the Commonwealth, namely, the Act. The effect of s 163 is that the letter is presumed to have been received on the fifth business day after the date it bears (which, in practical terms, is likely to be seven days after the date). As Gray J pointed out (134 FCR 308 at 323-324 [54]) the letter of notification in that case did not comply with s 66(2)(d)(ii) of the Act because it failed to state accurately the time within which the application for review might be made. Accordingly, the Tribunal's obligation to notify the applicant, in that case, of the decision not to grant the substantive visa he sought, which was imposed by s 66, had never been discharged. 27 As s 66(2)(d) of the Act says, if an applicant has a right to have a decision reviewed under, relevantly, Pt 7, the letter or document of notification must: '... state: (ii) the time in which the application for review may be made' 28 By s 66(4) a failure to give notification of a decision does not affect the validity of the decision. 36 Although there may be some arguable issue, based on what Gray J said in Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 ; (2003) 134 FCR 308, I am satisfied that no sufficient doubt has been raised to warrant a grant of leave from his Honour's finding set out at [5] above that the lengthy and poorly explained delay justified his Honour's exercise of discretion in refusing to grant prerogative relief. I am of opinion that there has been no substantial injustice shown.