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Federal Court of Australia - Full Court Decisions |
Last Updated: 11 May 2007
FEDERAL COURT OF AUSTRALIA
SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63
MIGRATION – appeal from
decision of Federal Magistrate dismissing appellant’s application for
constitutional writs in respect of
a decision of the Refugee Review Tribunal
– where appellant applied for protection visa – where application
refused by
delegate of Minister – where Tribunal affirmed delegate’s
decision – where appellant nominated authorised recipient
pursuant to s
441G of Migration Act 1958 (Cth) – where Tribunal sent letter in
purported compliance with ss 425 and 425A of Migration Act to appellant
in person and not to authorised recipient – whether giving of document to
appellant sufficient to discharge Tribunal’s
obligations regarding
invitation – whether breach of s 441G amounts to jurisdictional error.
Held: s 441G creates obligation that
Tribunal provide document to authorised recipient – provision of document
to appellant in accordance
with a method of service specified in s 441A not
sufficient to comply with obligations in ss 425, 425A and 441G – failure
to comply with obligation in s 425A amounts to jurisdictional error –
appeal allowed.
Migration Act 1958
(Cth) ss 359, 379, 425, 426, 441
Migration Regulations 1994 (Cth)
Lee v Minister for Immigration and
Citizenship [2007] FCAFC 62 referred to
Le v Minister for Immigration
and Citizenship [2007] FCAFC 20 referred to
Lo v Minister for
Immigration and Citizenship [2007] FCA 553 referred to
Makhu v
Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221 referred to
NAIS v Minister for Immigration and Multicultural and
Indigenous Affairs [2005] HCA 77; (2005) 223 ALR 171 referred to
Refugee Review
Tribunal, Re; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 referred to
SAAP v
Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 79
ALJR 1009 referred to
Stead v State Government Insurance Commission [1986] HCA 54;
(1986) 161 CLR 141 referred to
VEAN of 2002 v Minister for Immigration and
Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570 referred to
SZFOH v MINISTER FOR IMMIGRATION AND
CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1250 OF
2006
MOORE, BESANKO AND BUCHANAN JJ
11 MAY
2007
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. The name of the first respondent be amended from "Minister for Immigration and Multicultural Affairs" to "Minister for Immigration and Citizenship".
2. The appeal be allowed and the orders of the Magistrate be set aside.
3. There be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal ("the Tribunal") made on 14 June 2006.
4. There be an order in the nature of mandamus requiring the Tribunal to review according to law the decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs on 12 July 2004 to refuse the protection visa sought by the appellant.
5. The first respondent pay the appellant’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
|
|
BETWEEN:
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SZFOH
Appellant |
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AND:
|
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGES:
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MOORE, BESANKO AND BUCHANAN JJ
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DATE:
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11 MAY 2007
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
MOORE J
1 I have had the benefit of reading the judgment of Besanko J in a draft form. I agree with the orders his Honour proposes for the reasons he gives. I remain of that opinion notwithstanding the recent judgment of the Court in Lo v Minister for Immigration and Citizenship [2007] FCA 553.
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IN THE FEDERAL COURT OF AUSTRALIA
|
|
|
NEW SOUTH WALES DISTRICT REGISTRY
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NSD 1250 OF 2006
|
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
|
|
BETWEEN:
|
SZFOH
Appellant |
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AND:
|
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGES:
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MOORE, BESANKO AND BUCHANAN JJ
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DATE:
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11 MAY 2007
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
BESANKO J
2 This is an appeal from an order made by a Federal Magistrate. The Magistrate made an order dismissing the appellant’s application for constitutional writs directed to the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") and the Refugee Review Tribunal ("the Tribunal"). A delegate of the Minister had refused the appellant’s application for a Protection (Class XA) visa and on an application for review by the appellant that decision had been affirmed by the Tribunal.
3 The principal issue on the appeal concerns the proper interpretation of
ss 425A, 441A and 441G of the Migration Act 1958 (Cth) ("the Act").
The Court considered similar issues of construction, albeit in relation to ss
359A, 379A and 379G of the Act, on an appeal heard the day before the hearing of
this appeal: Lee v Minister for Immigration and Citizenship [2007] FCAFC
62 ("Lee").
The facts
4 The facts may be briefly stated because the key issues on the appeal relate to the procedure adopted by the Tribunal.
5 The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 12 June 2004. On 5 July 2004 he lodged an application for a Protection (Class XA) visa and on 12 July 2004 a delegate of the Minister refused his application.
6 On 6 August 2004 the appellant applied to the Tribunal for a review of the delegate’s decision. In order to do that he completed a document entitled "Application for Review". This is a printed form with certain parts to be completed by the applicant. The appellant completed the form setting out his residential address and in the appropriate part of the form (Section C) he nominated his adviser to act for him in relation to the application. The person he nominated was Mr George Pei of Jin Xing and Co, 1/1 Miller Avenue, Ashfield, New South Wales. In another part of the form (Section D) he nominated Mr Pei as his authorised recipient and the form contained the following printed statement as to the role of that person:
"My Authorised Recipient
You can nominate someone to receive correspondence in connection with the review. This person is known as your Authorised Recipient. If you nominate an Authorised Recipient, all correspondence will be sent to this person. If you have an adviser but you nominate another person to be your Authorised Recipient, the Tribunal will not send correspondence to your adviser."
7 Section 441G of the Act is in the following terms:
"(1) If:
(a) a person (the applicant) applies for review of an RRT-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consists of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3) The applicant may vary or withdrawn the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.
(4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.
(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal."
8 As I understand it, it is not in dispute that Mr Pei was the appellant’s authorised recipient for the purposes of s 441G of the Act.
9 The Tribunal decided that a decision could not be made in the appellant’s favour on the information he had provided. The Tribunal decided to invite the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was obliged to do that and none of the exceptions in s 425 was relevant. Section 425 of the Act is in the following terms:
"(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal."
10 The Tribunal purported to send a letter to the appellant dated 27 October 2004 inviting him to a hearing of the Tribunal on 29 November 2004. The Tribunal did that for the purpose of complying with ss 425 and 425A. The latter section is in the following terms:
"(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A."
11 The letter itself was addressed to the appellant at his residential address as shown in the Application for Review document and at the end of the letter there is a note to the effect that it was sent to the authorised recipient at a different address to that shown in the Application for Review document and that a copy of the letter was sent to the applicant "as addressed". I will refer to this letter as "the invitation to appear".
12 The appellant did not appear at the proposed hearing on 29 November 2004. The Tribunal member decided to make a decision on the review without taking any further action to allow or enable the appellant to appear before the Tribunal. In doing so he exercised the power in s 426A of the Act which is in the following terms:
"(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled."
13 In his reasons signed on 2 December 2004 and handed down on 23 December 2004, the Tribunal member makes the following observations:
"The Applicant claimed to fear persecution on return to China because of his involvement in a group supporting the Taiwanese referendum on independence, or more generally, for his support of democracy. However the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention if he returns to China. This is because the Tribunal finds the Applicant claims [sic] very general and lacking in useful detail. For example, there is very little useful detail about the group, or about the group’s activities or the Applicant’s activities in actually supporting the referendum or democracy more generally, or about his claimed future intentions. It also appears that the Applicant’s claims are inconsistent in that he was issued with an official PRC passport yet he claimed to be of serious adverse interest to the PRC authorities and in trouble at work. In addition the Tribunal has not had the opportunity to test the Applicant’s claims; although the Applicant stated in the review application that he can provide true and detailed oral evidence he did not respond to the Tribunal’s offer of a hearing, to give oral evidence and present arguments in support of his claims, or attend that hearing or contact the Tribunal about his failure to attend. The Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution within the meaning of the Convention."
14 As to the invitation to appear, the Tribunal member said:
"On 27 October 2004 the Tribunal wrote to the Applicant (and his registered migration agent) advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the Applicant to give oral evidence and present arguments at a hearing on 29 November 2004. The Applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received. The Applicant has not provided a contact number and letters sent to his home address have been returned either as left address or insufficient address. The Tribunal contacted the Applicant’s registered migration agent on 23 November and was told that a response about the hearing would be sent as soon as possible. As at the date of signing this decision nothing has been received by the Tribunal and the Applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it."
Grounds of challenge
15 The first and principal ground of appeal is that the Magistrate erred in not concluding that the Tribunal had not given the invitation to appear to the appellant in accordance with the provisions of the Act and that, by reason of that fact, the Tribunal had committed a jurisdictional error.
16 The second ground of appeal is not easy to follow. It appeared to be based on the assumption that the first ground of appeal is rejected, and is to the effect that if, as a matter of law, the Tribunal was not required to give the invitation to appear to the appellant’s authorised recipient then the printed statement in the Application for Review document set out in [6] above was misleading and this is sufficient to vitiate the Tribunal’s decision. This submission was not put to the Magistrate and was raised for the first time in this Court. I am of the view that the appellant’s first ground of appeal succeeds and, in these circumstances, it is not strictly necessary for me to determine the second ground of appeal. Leaving aside the question of whether the appellant should be allowed to raise this matter for the first time on appeal, I have great difficulty in accepting the submission. On the assumption that his first ground of appeal fails, I am far from convinced that it follows from that that the printed statement in the Application for Review document is misleading in a relevant sense or, if it is, that that fact gives rise to a jurisdictional error.
17 The applicant’s third ground of appeal is that the Magistrate erred in not concluding that the Tribunal erred in a manner going to its jurisdiction in deciding to make a decision on the review without taking any further action to allow or enable the appellant to appear before it. As with the second ground of appeal, this ground of appeal is put on the basis that the first ground of appeal fails. On that assumption I would reject the third ground of appeal because the appellant has not identified any error, let alone jurisdictional error, in the exercise by the Tribunal of the discretion given to it under s 426A of the Act.
18 I turn then to consider the first ground of appeal.
The
Magistrate’s reasons
19 The Magistrate said that the invitation to appear was sent to the appellant at his last residential address provided to the Tribunal. I am not sure that that is strictly accurate as the notes on the invitation to appear suggest a copy was sent to the appellant. However, neither party treated that point as one of any significance.
20 The Magistrate said that as far as the letter sent to the appellant was concerned there had been compliance with s 441A(4) and that pursuant to s 441C(4) the letter was deemed to have been received in time to provide the requisite period of notice required under reg 4.35D of the Migration Regulations 1994 (Cth).
21 Section 441A relevantly provides:
"(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
...
(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review."
22
Section 441C relevantly provides:
"(1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).
...
(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document; or
(b) in any other case--21 days after the date of the document."
23 As to whether the invitation to appear had been given to the authorised recipient, the Magistrate said:
"The Court documents indicate that a copy of the letter was also sent to the applicant’s agent, but the address shown is a different address at Ashfield than the address of the agent shown in the application for review. One explanation for this might be that the Tribunal was aware of a change of location of the agent, but there is not [sic] evidence to this effect before me. However, in my opinion, the sending of the invitation to the applicant himself satisfied the obligation of the Tribunal to serve an invitation to a hearing pursuant to s 425A, and it is irrelevant whether the invitation was also duly sent to the agent (see Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221)."
The giving of the invitation to appear
24 The Magistrate proceeded on the basis that it was immaterial whether the invitation to appear was served on the appellant’s authorised recipient; it was sufficient that it had been served on the appellant himself by the method specified in s 441A(4) of the Act. On that basis he made only limited findings on the circumstances surrounding service of the invitation to appear on the authorised recipient.
25 In my respectful opinion, the Magistrate was wrong to conclude that service on the authorised recipient was immaterial. Sections 441A, 441C and 441G are in similar terms to ss 379A, 379C and 379G of the Act. They link back to ss 425, 425A and 426A in a similar way to the way in which ss 379A, 379C and 379G link back to ss 359A, 359C and 360. Although the issue in Lee concerned an invitation to comment rather than an invitation to appear, the reasoning I adopted in Lee applies with equal force to the proper interpretation of ss 425, 425A, 426A, 441A, 441C and 441G and I take the liberty of repeating what I said in that case:
"The questions raised by the notice of contention relate to the proper construction of s 379G and the relationship of that section to s 359A and other sections in the Act. Although it is submitted by the first respondent that the proper construction of s 379G is to be considered in light of other sections in the Act, it is convenient to consider first the construction of s 379G simply by having regard to the terms of the section itself.
On the face of it, the section is expressed in mandatory terms, and the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. If a document is given to an authorised recipient by the Tribunal then it is taken to have given the document to the applicant. The qualification in subsection (2), namely, ‘However, this does not prevent the Tribunal giving the applicant a copy of the document’, makes it clear that the earlier provisions do not prevent the Tribunal from giving the applicant a copy of the document. The word ‘this’ in the qualification is a reference to the statement in the immediately preceding sentence whereby it is said that by giving a document to the authorised recipient the Tribunal is taken to have given the document to the applicant, and is not a reference to the section as a whole. In other words, the qualification operates where the document has been given to the authorised recipient, not as an alternative to the giving of the document to the authorised recipient. Furthermore, it is not without significance that what may be given to the applicant under s 379G(2) is a copy of the document. If the process of construction was restricted simply to the terms of s 379G, I do not think that the qualification in subsection (2) has the effect of giving the Tribunal the option of giving a document to the authorised recipient or to the applicant. The qualification simply makes it clear that if a document is given to the authorised recipient, the Tribunal is not thereby prevented from also giving a copy of the document to the applicant.
This construction of s 379G is consistent with what might be considered to be the purpose of the section. An applicant may have language difficulties or other difficulties in terms of his or her ability to comprehend written documents, and, in those circumstances, it may be considered desirable to give the applicant the right to nominate a person who the applicant knows will receive documents. This construction of the section places no additional or higher obligation on the Tribunal; it can give a document to an authorised recipient instead of an applicant. On the other hand, it is difficult to see why the section would be in the terms in which it is if the intention of Parliament was to give the Tribunal an option as to the person to whom it gives documents.
Section 379G must of course be construed having regard to its place in the Act and in light of other relevant provisions. Section 359A does not refer to s 379G; in subsection (2) it simply refers to one of the methods of giving a document to an applicant specified in s 379A. Section 379A does not refer to s 379G.
One construction of the relevant provisions is that s 379G is simply not relevant to the obligation in s 359A. On this construction s 379G would have no role to play in a case such as the present. As long as the appellants were given the letter by one of the methods specified in s 379A then the provisions of s 359A were satisfied. A second construction of the relevant provisions is that s 379G has a role to play in the operation of s 359A, but, because of the qualification in s 379G(2), its operation is such that, in the context of s 359A, the Tribunal has the option of giving the document to an applicant in accordance with one of the methods specified in s 379A, or giving it to the authorised recipient in accordance with the provisions of s 379G. In my opinion, neither of these constructions is the proper construction of the relevant provisions.
In my opinion, if the circumstances for the operation of s 379G are satisfied then the invitation under s 359A must be given to the authorised recipient. It is not sufficient to give the document to the applicant by one of the methods specified in s 379A and I respectfully disagree with the reasoning of Mansfield J in Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221. Furthermore, I doubt that proof of actual service on, or receipt of the document by, the applicant overcomes the failure to comply with s 379G or means that such failure does not give rise to jurisdictional error. However, it is not necessary for me to decide this point.
In my opinion, in terms of the identity of the person who must be given a relevant document, s 359A and s 379A must be read as subject to s 379G. The various sections must be read so that they operate conformably with each other: Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 at 440 per Gibbs J (as he then was); The Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 479 per McHugh and Gummow JJ; DC Pearce and RS Geddes ‘Statutory Interpretation in Australia’ (6th ed, 2006) [4.3]). There is little difficulty in doing that in the case of s 379A because subsection (1) of that section refers not to an applicant, but to a person the Tribunal is required or permitted to give a document to, and it defines that person as a recipient. If s 359A and s 379A are not read as subject to s 379G in the sense I have indicated then the latter section would have very little work to do and that would seem to be inconsistent with the plain intent of the section. Nor do I think that one can read s 379G as qualifying s 359A and s 379A but, because of the qualification in s 379G(2), there is an alternative available to the Tribunal of giving the document to the applicant as distinct from his authorised recipient. Once s 359A and s 379A are read conformably with s 379G, the section operates according to its clear terms, and if there is an authorised recipient, the document must be given to that person by the Tribunal. Furthermore, it seems to me that to ensure the sections operate conformably with each other, the document must be given to the authorised recipient by one of the methods specified in s 379A of the Act. That is the effect of the clear direction in s 359A(2)(a) of the Act. In this case the authorised recipient was not given the document and therefore the relevant exception in s 360(2) was not established. The Tribunal failed to comply with the obligation in s 360(1) of the Act, and that constituted a jurisdictional error.
Submissions were made about the effect of the note in s 379G and it was suggested that it was of assistance in resolving the point of construction. The note is not part of the Act: Acts Interpretation Act 1901 (Cth) s 13. It is extrinsic material that might be considered because it is in the document containing the text of the Act as printed by the Government Printer: Acts Interpretation Act 1901 (Cth) s 15AB(2)(a). However, I do not think the note is of any assistance in resolving the point of construction.
Since preparing these reasons in draft, I have considered the decision of the Full Court of this Court in Le v Minister for Immigration and Citizenship [2007] FCAFC 20 (‘Le’). There is nothing in the reasons for judgment in that case which is inconsistent with the conclusions I have reached. The Court was there considering the provisions of ss 57, 494A, 494B and 494D of the Act. The Court left open the question of whether there was jurisdictional error if it was established that the document did in fact come to the attention of the applicant ([31]). The Court came to the conclusion that the Minister could decide how he gave the document to the authorised recipient under s 494D [19]. As I have said, I have reached the conclusion that under ss 359A, 379A and 379G the authorised recipient must be given a document by one of the methods specified in s 379A. That follows in my view from the express terms of s 359A(2)(a) of which there was no equivalent in Le.
Since preparing these reasons, I have also considered the reasons for judgment of Conti J in Lo v Minister for Immigration and Citizenship [2007] FCA 553 (‘Lo’). That decision concerned the appointment of an authorised recipient under s 494D of the Act and may be distinguished on the ground that Conti J found that at the relevant time there was no appointment of an authorised recipient in existence. To the extent that his Honour may have decided the case on a broader basis which is inconsistent with the reasoning set out above, I would, with respect, decline to follow the decision in Lo."
26 It follows from this reasoning that if the invitation to appear was not given to the appellant’s authorised recipient, the provisions of the Act were not complied with and there has been jurisdictional error. As I said in Lee, whether there is a possible exception if actual service on the appellant is established may be put to one side because it is not suggested that it was established in this case.
27 The first respondent asked the Court to conclude that the invitation to appear was given to the authorised recipient. The difficulty with this submission is that it asks this Court to make a finding of fact about an issue in circumstances where the Magistrate has not done so.
28 I would not be prepared to find that the invitation was given to the authorised recipient as required by the Act. For the reasons I gave in Lee, the authorised recipient must be served by one of the methods specified in s 441A of the Act. I am not prepared to infer from the Tribunal’s comments set out in [14] above that the invitation to appear was sent to the authorised recipient at an address provided to the Tribunal.
29 There is in any event a further problem. The letter itself is addressed to the appellant at his residential address. It is not addressed to the authorised recipient and, on the authority of VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570, that means the document has not been given to the authorised recipient. Even if it is appropriate to infer that the envelope containing the letter was addressed to the authorised recipient (a matter I doubt) I do not think that overcomes the problem.
30 The Tribunal did not comply with s 425A of the Act and the power in s 426A to make a decision on the review without taking any further action to allow or enable the appellant to appear before it was not enlivened.
31 Jurisdictional error on the part of the Tribunal has been established and
the Magistrate erred in rejecting the submission to
that
effect.
Conclusions
32 For these reasons, I would make the following orders:
1. The name of the first respondent be amended from "Minister for Immigration and Multicultural Affairs" to "Minister for Immigration and Citizenship".
2. The appeal be allowed and the orders of the Magistrate be set aside.
3. There be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal ("the Tribunal") made on 14 June 2006.
4. There be an order in the nature of mandamus requiring the Tribunal to review according to law the decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs on 12 July 2004 to refuse the protection visa sought by the appellant.
5. The first respondent pay the appellant’s costs of the appeal.
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I certify that the preceding thirty-one (31) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Besanko.
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Associate:
Dated: 9 May 2007
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IN THE FEDERAL COURT OF AUSTRALIA
|
|
|
NEW SOUTH WALES DISTRICT REGISTRY
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NSD 1250 OF 2006
|
|
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
|
|
BETWEEN:
|
SZFOH
Appellant |
|
AND:
|
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
|
JUDGES:
|
MOORE, BESANKO AND BUCHANAN JJ
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|
DATE:
|
11 MAY 2007
|
|
PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
BUCHANAN J
33 The appellant arrived in Australia on 12 June 2004 claiming to be a citizen of the Peoples Republic of China. On 5 July 2004 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act").
34 On 12 July 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant a protection visa and on 6 August 2004 the appellant applied for a review of that decision.
35 The Refugee Review Tribunal ("the RRT") on 23 December 2004 confirmed the delegate’s decision not to grant a protection visa.
36
An application was made to the Federal Magistrates Court for judicial review of the decision of the RRT. On 5 July 2006 Smith FM dismissed the application to that court. From that last decision an appeal is brought to this Court.
37 At the hearing of this appeal three contentions were advanced by the appellant. In summary they were:
(i) the provisions of the Act for effective notification of the hearing of the RRT had not been complied with, with the result that the appellant had not been notified in accordance with s 425A of the Act. As a result it was not open to the RRT to make a decision contrary to his interests under s 426A of the Act;
(ii) the appellant was misled by the form provided by the Department to apply for a review of the delegate’s decision into thinking that only his nominated authorised recipient, and not he himself, would receive communications from the Department with the result that when he changed address without notifying the Department he inadvertently acted to his detriment by becoming unable to receive communications from the Department;
(iii) the RRT misused a discretion contained within s 426A of the Act by proceeding to make a decision in his absence rather than delaying any such decision and giving him a further opportunity to appear.
38 In my view the second and third arguments are unavailing and I would reject them. Briefly, my reasons are as follows.
39 As to the second argument, an applicant who does not keep the Department advised of changes to his contact details fails to do so at his peril (see also s 104 of the Act which requires that a change in circumstances be notified as soon as practicable). Nothing on the form provided by the Department for the purpose of applying for a review of the Decision of a delegate contains a representation to the effect suggested by the appellant.
40 The third argument misconceives the requirements and operation of s 426A. Section 426A provides:
"(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
The Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled."
41 If the RRT had communicated with the appellant as the Act required there was no reason why a decision should not be made in the absence of any response by the appellant. No question of a misuse of discretion would arise. No jurisdictional error would be established.
42 The first argument, however, is in my view a sufficient ground for upholding this appeal.
43 In his application for a review of the decision of the delegate the appellant nominated an authorised recipient and elected to have correspondence sent to him. This nomination was effective for the purposes of s 441G of the Act.
44 Section 441G(1) and (2) provide as follows:
"(1) If:
(a) a person (the applicant) applies for review of an RRT-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document."
(emphasis added)
45 In my view the language of this provision is quite plain. A document required to be given to the appellant is to be given instead to the authorised recipient. A copy may also be given to the appellant but this "copy" is not the "document" which would otherwise be given to the appellant. It is an ancillary communication which does not satisfy the primary obligation.
46 An example of the strictness with which these provisions must be complied is given in VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570. In that case a communication had been addressed to an applicant "care of" the authorised recipient. A Full Court of this Court held that this did not result in the document being given to the authorised recipient.
47 Section 425A of the Act contains the statutory direction as to the notice which must be given, to someone in the position of the applicant, of the time and place of the hearing of his application for review by the RRT. Section 425A provides:
"(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A."
48 The substitution of an authorised recipient for an applicant (for that is what s 441G directs) has significance for the operation of s 425A in two respects.
49 The first consequence of the operation of s 441G is that the notification which is directed by s 425A to be given to the applicant must instead be given to the authorised recipient. Any copy given to the applicant does not serve the purpose of a notification under s 425A.
50 The second consequence is that the notice must be given to the authorised recipient (instead of the applicant) by one of the methods directed in s 441A. This in turn engages the provisions of s 441C.
51 Section 441A of the Act (so far as here relevant) provides:
"(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
The methods are as follows.
...
(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review."
(emphasis added)
52 Section 441C of the Act (so far as relevant) provides:
"(1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).
...
(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; or
(b) in any other case – 21 days after the date of the document."
53 Although, as argued by counsel for the respondent, other communications to the authorised recipient may be effected in accordance with the provisions of s 441AA (with the result that a choice may be made whether to use s 441A or some other means of transmission) that is not the case with respect to a notice required to be given under s 425A. In such a circumstance it must be given in accordance with s 441A. This has significance for the appellant’s position in the present case because it is accepted that the document was not sent to the authorised recipient at the last address for service provided to the RRT by the recipient or the last business address provided to the RRT by the recipient, in accordance with s 441A sub-s (4). The result is that s 441A was not complied with and deemed receipt did not occur under s 441C. The consequence is that s 425A was not complied with. The further consequence is that there was no authority under s 426A to make a decision in the absence of a response by the appellant, relying upon the statutory scheme.
54 This approach to the legislative scheme is consistent with the decision of a Full Court in relation to corresponding provisions in Part 9 of the Act in Le v Minister for Immigration and Citizenship [2007] FCAFC 20 ("Le") at [5], [18] and [24].
55 The view which I take of the operation of the legislation does not accord with the approach taken by Mansfield J in Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221 ("Makhu"). Makhu, in my respectful opinion, should be overruled.
56 After the hearing of this appeal the legal representatives of the first respondent drew our attention to a judgment of Conti J delivered on 18 April 2007 in Lo v Minister for Immigration and Citizenship [2007] FCA 553 ("Lo"). Although in that judgment his Honour mentions both Le and Makhu those references (which arose from submissions by the parties) do not change the view which I take. The decision in Lo turned upon factual findings to the effect that at the relevant time the applicant in that case did not have an authorised recipient to whom correspondence to her must be sent.
57 The first respondent argues in the present case that there is evidence that the authorised recipient knew of the notice inviting the appellant to appear because the RRT records in its decision that there had been a telephone communication with the authorised recipient who said "that a response about the hearing would be sent as soon as possible". The first respondent also relies upon the fact that notification was sent to the appellant at the last residential address given to the RRT by the appellant. It may be accepted, for present purposes, that under the general law effective communication might be sufficient to satisfy natural justice or procedural fairness requirements. However the general law does not apply to the issues raised by the present proceedings. Section 425A and s 426A appear in Division 4 of Part 7 of the Act. Sections 441A, 441C and 441G appear in Division 7A of Part 7 of the Act. Section 422B (which is the first section in Division 4 of Part 7 of the Act) provides:
"(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with."
58 Consequently the directives in s 441G and the way in which they interact with the provisions of s 425A, 426A, 441A and 441C are an exhaustive statement with respect to natural justice and procedural fairness. Correspondingly they must be complied with strictly – see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 79 ALJR 1009.
59 The failure to send the notice under s 425A to the authorised recipient (instead of the appellant) at the last address provided to the RRT by the authorised recipient was a fatal failure to comply with the statutory regime with the result that the Tribunal’s decision was made without jurisdiction and is invalid.
60 The next question is whether relief should be granted. I can see no reason to withhold relief in this case. The appellant’s position is that he desires to present material to the Tribunal. It cannot be said that this could not possibly make a difference to the RRT’s deliberations – see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; see also Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 223 ALR 171.
61 I agree with the orders proposed by Besanko J.
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I certify that the preceding twenty-nine (29) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Buchanan.
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Associate:
Dated: 9 May 2007
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Counsel for the Appellant:
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Counsel for the First Respondent:
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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