AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Federal Magistrates Court of Australia
You are here:  AustLII >> Databases >> Federal Magistrates Court of Australia >> 2008 >> [2008] FMCA 138

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

SZKHR & Anor v Minister for Immigration & Anor [2008] FMCA 138 (3 April 2008)

Last Updated: 24 April 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKHR & ANOR v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in finding that the applicants were notified of the delegate’s decision by letter sent to another person as authorised recipient but returned to sender – whether applicants gave Minister notice of the name and address of their authorised recipient under s.494D of the Migration Act 1958.


Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407
Le v Minister for Immigration and Citizenship [2007] FCAFC 20; (2007) 157 FCR 321
Minister for Immigration & Citizenship v SZKPQ [2008] FCAFC 21
VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570

First Applicant:
SZKHR

Second Applicant:
SZKHS

First Respondent:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent :
REFUGEE REVIEW TRIBUNAL

File number:
SYG 759 of 2007

Judgment of:
Barnes FM

Hearing date:
10 December 2007

Delivered at:
Sydney

Delivered on:
3 April 2008

REPRESENTATION

Solicitors for the Applicant:
Newman & Associates

Solicitors for the Respondent:
DLA Phillips Fox

ORDERS

(1) That a writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the Refugee Review Tribunal made on 24 January 2007 in Tribunal case file number 060984946.
(2) That a writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 10 August 2006.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 759 of 2007

SZKHR

First Applicant


SZKHS

Second Applicant


And


MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent


REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Background

  1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 24 January 2007. The Tribunal found that it did not have jurisdiction to review a decision of a delegate of the first respondent refusing to grant the applicants protection visas.
  2. The applicants, who are husband and wife, applied for protection visas in June 2006. On 10 August 2006 a delegate of the first respondent refused to grant them protection visas. The delegate sent the applicants a copy of that decision and a decision notification by letter dated 10 August 2006 addressed to a Mr Khan at a post office box in Griffiths N.S.W on the basis that Mr Khan had been nominated by the applicants as their authorised recipient to receive written correspondence regarding the application.
  3. The applicants sought review by application lodged with the Tribunal on 24 November 2006. On 12 December 2006 the Tribunal wrote to the applicants inviting submissions on its preliminary view that it did not have jurisdiction because the application for review was received outside the prescribed time limit. In its reasons for decision the Tribunal recorded that it did not receive a response to that letter.
  4. The Tribunal outlined the law in relation to a valid application for review, referring to the provisions of the Migration Act 1958 (Cth) dealing with notification of a decision to refuse to grant a visa. It was satisfied that the contents of the delegate's decision notification complied with the requirements of s.66(2) of the Act. It found that the Departmental file records indicated that the applicants had given the Minister written notice of the name and address of their authorised recipient under s.494D. It found that the decision notification letter of 10 August 2006, having been sent by pre-paid registered post on 10 August 2006, was dispatched within three working days of the date of the letter to the correct address for the applicant’s authorised recipient (Mr Khan) in accordance with s.494B(4) of the Act. On that basis the Tribunal was satisfied that the applicants were taken to have received the decision notification on 21 August 2006 (seven working days after the date of the notice) even though the notice was in fact returned to the Department of Immigration unclaimed.
  5. The Tribunal found that the applicants were seeking review of the delegate’s decision under s.411(2)(c) of the Act and that the 28 day prescribed period in s.412(1)(b) and Regulation 4.31(2)(b) of the Migration Regulations applied. It found that the last day that the application for review could be lodged was 18 September 2006 and that as the application for review was received by the Tribunal outside the mandatory time limit it was not a valid application. The Tribunal concluded that it had no jurisdiction to review the delegate's decision.

This application

  1. The applicants sought review of the Tribunal decision by application filed in this Court on 5 March 2007. The ground of review is that the Tribunal erred in law and failed to exercise its jurisdiction by “applying incorrect facts and ignoring relevant material”. The particulars of this claim are that the Tribunal asserted that the applicants had authorised someone to receive the Minister's decision when such was not the case and that it ignored probative evidence of a registered letter (enclosing the Minister's decision) being returned to the Minister by the postal authorities.
  2. In submissions the solicitor for the applicants clarified that the applicants’ contention was that a form of appointment of authorised recipient (Form 1231) which was signed by the applicants was incomplete and hence ought not to have been acted upon by the delegate of the first respondent as an appointment of an authorised recipient. Thus it was said that the delegate had not properly notified the applicants, as the notification of the decision letter was not sent to the applicants’ address, but rather to the address of the person regarded by the delegate of the Minister as the authorised recipient for the applicants.
  3. The first respondent submitted that the Tribunal had not erred in finding that the delegate of the first respondent had notified the applicants of the delegate's decision in accordance with the requirements of the Migration Act by sending that notification to the person named in the appointment of authorised recipient form at the address provided in that form. Reliance was placed on what was stated by the Full Court of the Federal Court in Le v Minister for Immigration and Citizenship [2007] FCAFC 20; (2007) 157 FCR 321 at [27] :

On that basis it was contended that the Tribunal correctly decided that the review application was out of time on the basis of the provisions in relation to the time of notification and hence that it did not have jurisdiction.

  1. The central issue in this case is whether or not the Tribunal erred in finding that the delegate had notified the applicants of the delegate's decision by the letter of notification dated and sent on 10 August 2006 in accordance with the requirements of the Migration Act and Regulations. It is now not in dispute that if the applicants were deemed to have been notified in this way their application to the Tribunal would have been out of time (despite the fact that the letter of 10 August 2006 was returned to sender) and hence the Tribunal would have been correct in finding it had no jurisdiction.
  2. Sections 412 and 414 of the Act stipulate that the making of an application within the prescribed time is an essential preliminary to the exercise of the Tribunal's jurisdiction (see Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407 per Heery J at [31], Finkelstein J at [44] and Dowsett J at [55]). It was not submitted that the Tribunal had any power to override the time limitations prescribed by s.412(1)(b) of the Act (see VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570).

Statutory provisions

  1. The Tribunal has jurisdiction if a valid application is made under s.412 of the Migration Act for the review of an RRT reviewable decision (s.411).
  2. Section 412(1)(b) of the Act provides:
  3. Regulation 4.31(2) provides that the prescribed period within which an application for review must be given to the Tribunal is a period of 28 days which “commences on the day on which the applicant is notified of the decision to which the application relates”.
  4. Section 66 of the Act imposes an obligation on the Minister, when the Minister refuses to grant a visa, to notify the applicant of the decision in the prescribed way. It sets out matters that must be specified in the notification, including review rights.
  5. Regulation 2.16 prescribes the manner of notifying a person of a decision to grant or refuse to grant a visa for the purposes of sub-section 66(1) of the Act. Sub-regulation 3 provides that: “The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act”.
  6. Relevantly sub-section (4) of s.494B is as follows:
  7. Under s.494C a person is taken to have received a document from the Minister if the Minister gives a document to that person by one of the methods specified in s.494B. Relevantly, s.494C(4) provides:

This deeming provision applies whether or not the recipient actually receives the document.

  1. Of critical importance to this decision is s.494D which is as follows:
  2. Finally, it is relevant to note that s.52(1) of the Act requires a visa applicant to communicate with the Minister (or Department) in the prescribed way. If he or she does not do so, any purported communication is taken not to have been received unless the Minister actually receives it (s.52(3)). Under Regulation 2.13(4) any such written communication must include not only the applicant’s full name as set out in the visa application but also either the applicant’s client number, Immigration file number or the number of the receipt issued by Immigration when the visa application was made.
  3. The Tribunal purported to apply these provisions in finding that it did not have jurisdiction to review the delegate's decision, being of the view that “The Department's file records indicate that the applicants gave the Minister written notice of the name and address of their authorised recipient under s.494D”. On this basis it found that the decision notification letter dated 10 August 2006 was sent to the applicants’ authorised recipient’s address in Australia provided to the Minister for the purpose of receiving documents.
  4. It was contended for the applicants that the Tribunal erred in finding that the applicants gave notice under s.494D and on that basis that sending the decision record to Mr Khan constituted notification of the delegate’s decision to the applicants under the Migration Act. Resolution of this question requires consideration first of the protection visa application.

The protection visa application

  1. In their protection visa application the applicants did not appoint an authorised recipient, despite having the opportunity to do so. Part B of the application form is stamped as received by the Department on 5 June 2006 and appears to have been signed by each of the applicants. It is not dated. Details of both applicants are provided in Question 1. That part of the form advises “Applicant 1 should be the person you wish the department to contact about this application (although you may wish to authorise another person or your migration agent to receive written communications (see Questions 16 – 24)”.
  2. Questions 15 to 18 of that form appear under the heading "Assistance with this form". Question 15 asks, "Did you receive assistance in completing this form?” and contains spaces for the name, address and other contact details. This was responded to by a cross in the box marked, "no". The form directs an applicant who responds “no” to go to Question 19 (leaving blank details of any person who assisted the applicant, whether the agent was registered, whether he or she was in Australia or whether there was any payment). The applicants followed this instruction and the next question to which they responded was Question 19 under the heading "Options for receiving written communications". Question 19 is as follows:
  3. Thereafter there are a number of alternatives with directions relating to each alternative. The applicant marked the box "myself" beside which was printed "All written communications will be sent to the address for communications that you have provided in this form. Go to question 27.”
  4. Other possible alternatives were: “Australian registered migration agent”, “off shore agent”, “agent exempted from registration” or “authorised recipient”. Beside the box marked "authorised recipient" appeared the words: “This is a person authorised to only receive written communications. All written communications that would otherwise have been sent to you in relation to this application will be sent to that person”. The applicant did not select any of these alternatives.
  5. In Question 19 of Part B of the protection visa application form it is indicated on the form beside the box “myself” that “All written communications will be sent to the address for communications that you have provided in this form”. There is in fact no place in Part B of the protection visa application form for an applicant to provide an address for communications, unless details of a migration agent or an authorised recipient are provided. However in Part C of the application the applicant husband provided a current residential address (as provided for in the Form). He also indicated in Part C that he did not agree with the Department communicating with him by fax, email or other electronic means. In response to a question about his “current postal address in Australia (if the same as residential address please write ‘same as residential’”) he responded “same as residential”.
  6. Despite the instruction beside the box marked “myself” in Question 19 of Part B to “go to question 27” the applicant also responded to Question 20 which asked: "Do you want the authorised person to receive health and/or character information about you, your spouse or your dependents, that may arise, or be revealed, in the course of this application (for example, requests for medical investigation, other health information about you, or the results of criminal history checks?" The applicant marked the box marked "no" in response to this question.
  7. The following questions in Part B (Questions 21 – 26) relate to details of any authorised recipient, consent of the authorised recipient, agent details and agent consent. The boxes were all left blank, but beside each heading the letters “NA” were inserted.
  8. The remaining section of Part B is the declaration by the applicants. It appears to have been signed by each applicant but is not dated. Question 28 (the interpreter’s declaration) is marked “NA”.
  9. The applicants did not indicate whether they each had their own claims to be a refugee in the declarations in Part B. However the applicant husband completed a Part C form headed "Application for an applicant who wishes to submit their own claim to be a refugee" also received by the Department on 5 June 2006. It contains details of his claims to be a refugee. His declaration on this form was completed before a witness as required and dated 8 May 2006. It refers to claims made by him in a separate document headed "Statement of Claims” which is also stamped as received by the Department on 5 June 2006.
  10. The second applicant (the first applicant’s wife) completed a Part D form headed “Application for a member of the family unit” which was also dated 8 May 2006 and received 5 June 2006. In that form she marked “yes” in response to the question “Do you live at the same address as applicant 1?” She did not give details of her address, except in the declaration.
  11. Were these the only documents lodged with the Department it would be clear that there was no notification of any authorised recipient under s.494D of the Act.
  12. The first respondent submitted that there was an indication that an authorised recipient was appointed by the fact that the applicants answered “No” to Question 20 about whether they wanted “the authorised person” to receive health and other information. To the contrary are the handwritten notations of “NA” beside Questions 21 to 26 which relate specifically to authorised recipient or agent details and consent. The completed form contains no details of any authorised recipient or migration agent and no consent or acceptance of appointment to receive written communications.

Form 1231

  1. Also appearing in the Court Book is a copy of a separate Department of Immigration Form 1231 (Design date 03/04) headed "Appointment of authorised recipient” stamped received by the Department on 5 June 2006. The first respondent contends that the Department and the Tribunal correctly regarded this form as constituting notification within s.494D of the Act.
  2. In Question 1, under the heading “Applicant’s details”, that form contains requested details of the family and given names and dates of birth of the applicant and his wife as they appear in Part B of the protection visa application (except that the wife’s first given name is spelt with an “e” instead of an “a”).
  3. Questions 2, 3 and 4 on the printed form are as follows:
  4. It is apparent that Question 2 lists the details specified in Regulation 2.13(4) as required under s.52. However there was no response to any item in any of these three questions. As such the form amounts to a purported communication as it was not made in the prescribed way. The form is, however, stamped received by the Department on 5 June 2006 (s.52(3)) and it is not disputed that it was actually received.
  5. In Question 5, under the heading "Authorisation" is the following question:

The box "no" was marked in response to this question.

  1. Finally Question 6 is:

The form bears signatures in boxes for the signature of the main applicant and for the signature of the second applicant. Each is dated 30 May 2006.

  1. Under the heading "authorised recipient details" in Question 7, details of a Mr Muhammad Khan were provided. The “authorised recipient’s postal address” is described as a specified post office box in Griffith, NSW 2680. Under the heading "Consent by Authorised Recipient for e-communication" (Question 8) the box "no" is marked in response to the question, "As the authorised recipient named on this form, do you agree to DIMIA communicating with you by facsimile, email, or other electronic means?". A signature appears in the box headed, "Signature of authorised recipient" and that part of the form is dated 31 May 2006.
  2. Nowhere in the form is there any explanation to the effect that if an authorised recipient is appointed all written communications that would otherwise be sent to the applicants will be sent to that person, as appears in the protection visa application form. Nor is there provision for any authorised recipient to acknowledge and accept appointment to receive all written communications such as appears in Question 23 of the protection visa application form.
  3. There is no evidence, whether in the form of letter from or on behalf of the applicants to the Department or otherwise, indicating that the Form 1231 relates to a particular visa application. Indeed there is no evidence that the form was provided to the Department together with the protection visa application (albeit it was received on the same day).
  4. The issue for determination is whether by the Form 1231, completed in the manner described, the applicants gave the Minister “written notice of the name and address of another person ... authorised by [the applicants] to do things on their behalf ... that consist of or include receiving documents in connection with matters arising under” the Migration Act or the Regulations within s.494D of the Act.

Subsequent correspondence

  1. In considering this issue it is also relevant to have regard to what the Department did after receiving the protection visa application (which stated that all written communication about that application should be sent to the applicant and which did not contain any details or consent of an authorised recipient) and the incomplete Form 1231 which purported to authorise the Department to send all written communications about an unidentified application to Mr Khan.
  2. First (and notwithstanding the actual receipt of the Form 1231 on 5 June 2006 which was the same day the protection visa application was received) on 8 June 2006 the Department wrote to the applicant at the address he had provided in the protection visa application form acknowledging receipt of the protection visa application, inviting him to provide further information and advising him about his immigration status while the application was being processed.
  3. The letter of 8 June 2006 was addressed to the applicant by his full name at the residential and mailing address he had provided in Part C of his protection visa application. The letter was marked "cc" to Mr Muhammad Khan at the post office box address in Griffith provided on the Form 1231.
  4. If the applicant had given the Minister notice under s.494D(1) then sending a copy of a letter addressed to him to his authorised recipient would constitute notification to such recipient (see Minister for Immigration & Citizenship v SZKPQ [2008] FCAFC 21). However that is not the issue in this case. What is relevant for present purposes is what the letter advised the applicant. The letter acknowledged receipt of the protection visa application and included the following:
  5. The Department’s advice to the applicant in this letter that the address given by him in the protection visa application had been “recorded as the place to which all correspondence relating to you application will be sent” and that if he wanted to nominate a person to receive letters and notifications he must tell the Department of this using a Form 956 suggests that the incomplete Form 1231 was not regarded by the Department as effective notification of an authorised recipient and that if the applicant wanted another person to receive future correspondence he had to complete a Form 956. There is no evidence that he did so.
  6. Despite the advice that all correspondence would be sent to the address given in the application, on 16 June 2006 a different Departmental officer wrote to Mr Khan (at the Griffith P.O. Box address) apparently by registered mail, enclosing a separate letter addressed to the applicant requesting further information in relation to the claims he had made in the protection visa application by 30 June 2006. The cover letter advised Mr Khan that the document was sent to him “in the first instance as you are nominated as the authorised representative to receive correspondence for the applicant.” There is no suggestion that the enclosed letter was also sent to the applicant at the address given in the protection visa application. That is clear from the fact that in the decision record the delegate stated that no response was received to the letter of 16 June 2006 sent to the applicant “through his authorised recipient”.

The decision and purported notification

  1. On 10 August 2006 the Department wrote to Mr Khan at the Griffith P.O. Box address by letter headed “registered post” in relation to the applicants’ protection visa application. That letter enclosed a decision letter dated 10 August 2006 addressed to the first applicant and the decision record dated 10 August 2006. The cover letter advised Mr Khan that “These documents are sent to you in the first instance as you are nominated by the applicant as the recipient who is authorised to receive written correspondence regarding this application". Again there is no suggestion that the enclosed decision letter and record were dispatched to any address other than the Griffith P.O. Box address which was the address for Mr Khan given in the Form 1231.
  2. In the decision record the lack of response (in the period of 56 days) to the request for information in the letter of 16 June 2006 sent to the person said to have been nominated by the first applicant as authorised recipient led the delegate to question the credibility of his claims and that his failure to provide the evidence requested in that letter did “not support a consideration” that his claims were credible. The delegate considered it reasonable to infer that the applicant had received the letter of 16 June 2006 letter and had chosen not to respond.
  3. The letter of 10 August 2006 sent to Mr Khan enclosing the decision letter and decision record was returned to sender on 25 August 2006 with the notation that the letter had been “refused”.
  4. On 25 August 2006 the delegate wrote to the applicant by registered post letter addressed to him at the residential and postal address he had provided in his protection visa application. This letter advised him that a decision to refuse his application had been made on 10 August 2006 and that the decision letter and the decision record, both dated 10 August 2006, had been sent to Mr Muhammad Khan by registered mail on 10 August 2006 “because he is the person you nominated on your application as the person to receive all correspondence" (emphasis added).
  5. The letter continued that the correspondence to Mr Khan had been returned to the Department by Australia Post with the notation that the letter was “refused” on 23 August 2006 and that:
  6. The letter provided contact details for the Refugee Review Tribunal. It enclosed a copy of the decision letter and decision record in relation to the applicants.

The review application

  1. As indicated above, the application for review was not received by the Refugee Review Tribunal until 24 November 2006. In the application for review the applicants provided the same residential address as provided in the protection visa application and marked "no" beside the as to whether they had an adviser they authorised to act for them in relation to the application. Both applicants signed the review application form.
  2. On 28 November 2006 the Tribunal received a completed change of contact details form from the applicant in which he provided a new residential address and a post office box address as his postal address. The section under the heading "Authorised Recipient Contact Details" was marked "NA". The applicant did not complete the section headed "Cancellation of Authorised Recipient" which provided for a box to be marked beside the printed statement: "I withdraw my previous authorisation of a person to receive correspondence on my behalf. I now wish all correspondence to be sent to me".
  3. On 12 December 2006 the Tribunal wrote to the applicant at the new postal address he had provided (although the letter commenced by stating "this correspondence is addressed to you as the authorised recipient of the review applicants") inviting him to comment and provide further information on what was described as an "eligibility issue (s)". That letter stated that the record showed that the applicant had been notified of the Department’s decision to refuse a protection visa by letter dated 10 August 2006, that he was therefore taken to have been notified of the decision by 21 August 2006, that the last day to apply to the Tribunal was 18 September 2006 but that the Tribunal did not receive the application until 24 November 2006. The Tribunal received no response to this letter. In the decision handed down on 24 January 2007 the Tribunal found that it did not have jurisdiction to review the delegate’s decision as outlined above.

Submissions

  1. The solicitor for the applicants contended that the Form 1231, which was separate from the protection visa application, was incomplete and ought not to have been acted on by the Department. It was pointed out that the authority given by the printed form was specific and limited, in that it referred to "the above application" which was to be identified by client, file, receipt or transaction reference number, visa category and place of application. It was said that the Form was not a general authorisation but was limited to very specific directions in relation to an application identified in at least one of the ways provided for in the Form. However the applicants provided no information on the Form as to any application before the Department in response to Questions 2, 3 and 4. In those circumstances it was submitted that the authority to communicate with the person nominated in Question 7 in relation to “the above application” in fact gave the Department authority to do “nothing”.
  2. It was also submitted that the language of s.494D(1) of the Act imported a requirement that before the Department could send documents to a person as authorised recipient, the applicant must notify the Minister that the person was authorised to receive documents “in connection with matters arising under” the Migration Act or Regulations. In this case the only form of authority received by the Department was limited to matters specified in questions to which there was no response. Moreover the form of authority provided for in Form 1231 was, in any event, an authority given to the Department and limited to matters specified therein (that is that “written communications about the above application be sent to the person nominated”) whereas s.494D(1) would only be satisfied if the applicant gave notice to the Department of a person authorised by him to do things “that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations”. This was said not to constitute notification that Mr Khan was authorised to receive documents in connection with matters arising under the Migration Act or Regulations within s.494D(1).
  3. It was clear that the applicants did not so authorise Mr Khan in the protection visa application itself. It was pointed out that the Form 1231 in issue was separate from the protection visa application form and reiterated that it failed to identify any visa application to which it was intended to apply. It was apparent that the Form was intended to give authority in relation to a visa application specified in that form. However no such visa application was specified. Hence the authorisation referring to “all written communications about the above application” was vague or uncertain as the form was incomplete. On this basis it was submitted that it could not be regarded as meeting the requirements of s.494D. The applicants contended that as the Form 1231 did not constitute written notice within s.494D, the Department could meet its notice obligations under the Act only by corresponding directly with the primary applicant at the address provided in the protection visa application.
  4. Initially the applicants’ solicitor contended that if the letter of 25 August 2006 (which was sent to the applicants’ address in the protection visa application) was intended to constitute notification of the delegate’s decision it was ineffective because it was addressed to the primary applicant by a name which omitted one of his given names as set out in the protection visa application and in his passport (a copy of which was provided to the Department). Issue was also taken with the time that letter was despatched (see s.494B). However the solicitor for the first respondent acknowledged that the letter of 25 August 2006 was not an attempt to meet any statutory requirement (and that it did not include many of the details in the letter of 10 August 2006). Hence it is not necessary to address the applicant’s contention that a notification letter has to be addressed to an applicant by his full name.
  5. Counsel for the first respondent contended that the Form 1231 in issue was an effective form of authority which met the requirements of s.494D of the Migration Act and related to the applicants’ protection visa application. It was said that it could be inferred that it related to the protection visa application as it was received by the Department on the same day and as there was no evidence before the Court of any other visa application by the applicants. It was noted that while the applicants had not nominated an authorised recipient in the protection visa application, they had indicated (in response to Question 20), that they did not want “the authorised person” to receive health and/or character information.
  6. It was pointed out that there was no requirement in the Migration Act that a particular form be used to nominate an authorised recipient within s.494D and submitted that the fact that responses to certain questions in the Form 1231 were not completed did not cause the document to be null and void, given the presence of the applicants’ names and signatures and the name and address details for the authorised recipient (as required by s.494D). It was said that the authority conferred by the Form 1231 met the requirements of s.494D(1) in that it expressed that the applicants authorised the named recipient to do things on their behalf that included receiving documents in connection with the application and hence that s.494D was “triggered” by such written notice (see Le at [27]).
  7. It was submitted that on this basis the Form 1231 was properly relied on by the Minister and that hence the Tribunal was correct in determining that the notification of 10 August 2006 met the requirements of the Act. On this basis the “precautionary” letter of 25 August 2006, while sent as a service to the applicant, was not one the delegate was statutorily obliged to send and in that sense was irrelevant.

Resolution

  1. In the particular circumstances of this case I am satisfied that the Tribunal erred in finding that the review application was lodged out of time and not a valid application and hence that it had no jurisdiction on the basis that the letter of 10 August 2006 met the notification requirements of the Act so that the applicants were taken to have received notification of the decision on 21 August 2006 even though the letter was returned unclaimed.
  2. The Tribunal made its findings on the basis that the “Department’s file records” indicated that the applicants had given the Minister written notice of the name and address of their authorised recipient under s.494D and that the decision notification letter was sent to the applicant’s authorised recipient’s address in Australia provided to the Minister for the purposes of receiving documents.
  3. In its reasons for decision the Tribunal did not specify what it was in the Department’s file records that indicated that the applicants had given the Minister written notice of the name and address of their authorised recipient under s.494D or what constituted the authorised recipient’s address in Australia “provided to the Minister for the purposes of receiving documents”. It made no express reference to the Form 1231 or to any other form of notification.
  4. I am satisfied that the applicants did not purport in any way to give the Minister written notice of the name and address of another person authorised to do any things in connection with matters arising under the Migration Act or Regulations in their protection visa application. On the contrary, and this is important in the context of considering the effect of the Form 1231, in the protection visa application received by the Department on 5 June 2006 the applicants clearly indicated that all written communications about the application should be sent to them at the address for communications provided in the protection visa application.
  5. In response to Question 19 in Part B of the application form the applicants ticked the box “myself” and did not tick any of the boxes relating to a migration or other agent or an authorised recipient. In circumstances where the opportunity to nominate an authorised recipient and thereafter to provide details was not taken up by the applicants (and where the following questions relating to details and consent of any authorised recipient were marked “NA”) the fact that the applicants ticked the box “No” in response to a question about whether they wanted the authorised person to receive health and/or character information is not such as to indicate that the applicants had authorised some other person to receive written communications in relation to the protection visa application either in the protection visa application or in some other way.
  6. The only address that appears in the protection visa application is a street address in Griffith provided in response to the question in Part C of the form about the primary applicant’s current residential address and that in response to the question about current postal address the primary applicant indicated that it was the same as his residential address.
  7. On this information alone there would be no doubt that s.494D would be inapplicable and the Minister would have been obliged to notify the applicants of the protection visa application decision by document sent (if dispatched by post was the selected method) to the primary applicant at the street address in Griffith he provided as both his current residential address in Australia and his current postal address in Australia in the protection visa application form.
  8. If the Tribunal relied on the protection visa application as constituting notification of an authorised recipient within s.494D(1) it fell into error. There is no evidence in the protection visa application form completed by the applicants on which the Tribunal could find that the applicants gave the Minister written notice of the name and address of an authorised recipient or that on the basis of what appeared in the protection visa application the purported decision notification letter of 10 August 2006 met the requirements of the Migration Act and Regulations as to deemed notification. Indeed, the first respondent did not contend that the protection visa application constituted s.494D(1) notification.
  9. Rather, reliance was placed on the Form 1231 in all the circumstances (including the date of receipt by the Department and the fact that in the protection visa application the applicants indicated that they did not want “the authorised person” to receive health and/or character information).
  10. It is not disputed that the signatures that appear on the Form 1231, a copy of which appears in the Court Book and which was received by the Department on 5 June 2006, are the signatures of the applicants. No issue is taken about the slight misspelling of the applicant wife’s first given name.
  11. However there are a number of difficulties with this particular Form and the manner in which it was partially completed which are relevant when it is considered in the context of the protection visa application and the subsequent communication from the Department to the applicants.
  12. The version of Form 1231 used in this instance (design date 03/04) has no space for addresses or other contact details for the applicants. Hence they can be identified only by name, date of birth and, importantly, by reference to other identifying details which would be applicable only if there had already been an application lodged with the Department. While the Form contains spaces in which alternative identifying details such as client, file, application receipt or transaction reference number can be provided and also asks specifically what category of application “have you lodged” as well as at what office “was that application” made, no such information was inserted in the form by the applicants.
  13. The actual receipt by the Department of the Form 1231 would overcome the failure of the applicants to communicate in the prescribed manner (by including one of the identifying Departmental “numbers” required under Regulation 2.13(4)(c)) so that it cannot be said that the Form should be taken not to have been received by the Minister (s.52(3)). However this does not determine the issue of whether the form that was received by the Department amounted to written notice within s.494D of the name and address of a person authorised by the applicants to do things that include receiving documents in connection with matters arising under the Act or Regulations such as to have effect in relation to communications about the applicants’ protection visa application.
  14. The Migration Act does not specify the manner in which an applicant is to authorise an authorised recipient or the method by which the applicant is to give the Minister “written notice of the name and address” of a person authorised as provided for in s.494D(1) (except insofar as s.52 is applicable). The version of Form 1231 used in this instance is expressed as an authority given by the applicants to the Department to send communications about a particular visa application to the person nominated in Question 7 and not as an authorisation given to the authorised recipient to receive documents in connection with matters arising under the Migration Act or Regulations or as “notice” of such authorisation to the Department. This particular version of the Form makes no provision for any indication by the person named as authorised recipient that such person understands and accepts that he or she is the person appointed by the applicant to receive all written communications either generally or in relation to a particular application, in contrast to the express acknowledgement of such an understanding and acceptance by any authorised recipient provided for in Part 23 of the protection visa application (a part that was marked “NA” in this instance).
  15. While I am satisfied that a completed Form 1231 may constitute notice to the Minister within s.494D(1) if properly completed, in the absence of other evidence as to the scope of any authority given by the applicants to a named person the form in question can only be notification of such authority as is specified on the completed form. In this case the authority is said to be in relation to the receipt of written communications “about the above application” which, however, is not identified in any way. Such authority is, on the face of the Form, meaningless and hence it is ineffective as written notice of details of a person authorised to receive documents in connection with the protection visa application.
  16. The first respondent suggested that it could be inferred that the Form related to the protection visa application and that if this Form was intended to apply to some visa application other than the protection visa application it would have been open to the applicants to provide evidence of such other application. However it is not the applicants’ contention that the Form 1231 related to some visa application other than the protection visa application, but rather that it was incomplete, ineffective and ought not to have been acted upon by the Department.
  17. The relevant evidence before the Court is limited to the protection visa application received on 5 June 2006 and the Form 1231 received by the Department on the same day. The Department has not put any other evidence before the Court linking the partially completed Form 1231 to the applicants’ protection visa application (although it can be inferred that the Department placed the form in the file relating to the protection visa application).
  18. The Form itself is expressed in terms appropriate in situations where a visa application has already been lodged – but it does not identify any such application. Even if the authority conferred by or referred to in the Form 1231 is to be taken as an authorisation of the named person to receive documents or a notification to the Minister of that authority, it is an authority that is limited to what is described as “the above application” and no such application is identified in that Form.
  19. There is no evidence before the Court that the Form was provided to the Department together with the protection visa application or under cover of a letter containing the protection visa application. Even if it could be inferred that it was provided at the same time (on the basis of the date of receipt) as a purported authority the form is inconsistent with the express and clear statement in the protection visa application that all written communications about that application should be sent to the applicants at the address for communications provided in the protection visa application.
  20. I am mindful that it would be inappropriate to insist on undue formality in the manner in which applicants must advise the Department of the appointment of an authorised recipient. The applicants may have intended to confer some authority on the Department, by partially completing and lodging the Form 1231. However even if that is so, they lodged inconsistent forms on the same day. In the protection visa application the applicants made it quite clear that they did not nominate an authorised recipient, but wanted written communications sent to the primary applicant. On the same day the Department received a form which, whilst signed by the applicants, did not specify precisely which application it was intended to relate to and did not indicate that the authorised recipient understood and accepted his appointment to receive written communications (as distinct from agreeing or not agreeing to the Department communicating with him by electronic means) let alone that the appointment related to the protection visa application.
  21. I consider it relevant that after these inconsistent documents were both received by the Department, the Department wrote to the applicant on 8 June 2006. While a copy of the letter was also sent to Mr Khan, the important thing about that letter for present purposes is that it post-dated the Department’s receipt of both the protection visa application and the Form 1231, but advised the applicant that his protection visa application had been received and that the address given “in his application” had been recorded as the place to which all correspondence relating to his application would be sent. It went on to tell him that he could nominate one other person to receive letters and notifications about his application and that he should use a particular form, a Form 956, to tell the Department such person’s address.
  22. This is an indication that even if the applicant had sought to notify the Department within s.494D in the Form 1231, the Department was of the view that, consistent with the fact that the Form 1231 was incomplete and did not identify an application, no effective notification had taken place. In effect it told the applicants of this by informing the applicant that it would send all correspondence to his residential address and that if he wanted to nominate an authorised recipient he would have to complete a form. The letter also advised that no information would be given to unauthorised persons – which would seem on the basis of this letter to include Mr Khan. The fact that a copy of the letter was sent to Mr Khan does not alter this fact. That the Department initially took this view highlights the inconsistency between the incomplete Form 1231 and the protection visa application.
  23. It is important that this was the only letter sent direct to the applicant (as distinct from being enclosed in a letter sent to Mr Khan) until the so-called “precautionary” letter of 25 August 2006. While the Department subsequently expressed the view that the applicant had nominated an authorised recipient in the request for further information sent to Mr Khan as well as in the decision and the letter of 10 August 2006 sent to Mr Khan, it did so in letters that were not sent to the applicant at the address provided in the protection visa application. Each of those letters was sent to Mr Khan “in the first instance” on the basis that he was nominated as the authorised recipient.
  24. The fact that the letters of 16 June 2006 and 10 August 2006 were sent to Mr Khan was contrary to the advice the Department gave to the applicant in the letter of 8 June 2006 that the address given in his application had been recorded as the place to which all correspondence relating to his protection visa application would be sent. The applicant was not directly informed thereafter that, contrary to the advice from the Department in its letter of 8 June 2006, correspondence was not to be sent to the address he had given in the protection visa application despite the fact that there is no suggestion that he lodged some other form of appointment or notification of an authorised recipient after 8 June 2006.
  25. In the particular circumstances of this case I am not persuaded that the partially completed Form 1231 received by the Department on 5 June 2006 was such as to either authorise Mr Khan as authorised recipient to do things on behalf of the applicants that consisted of or included receiving documents in connection with matters arising under the Migration Act or the Regulations (in particular such as to authorise him to receive documents in connection with the protection visa application lodged on 5 June 2006) or that it constituted a sufficient written notice to the Minister to meet the requirements of s.494D such that the Minister was required to give Mr Khan instead of the applicant any documents that the Minister would otherwise have given to the applicant in relation to the protection visa application.
  26. My decision would have been otherwise had the Form 1231 been expressed or completed differently, for example by inclusion of a response indicating a connection with the protection visa application or even by inclusion of a generally worded authorisation or acceptance of authorisation such as appears in Part B of the protection visa application form. Similarly, had there been evidence before the Court that the Form 1231 was lodged together with correspondence that linked it to the protection visa application in issue or had it been completed by insertion of details relating to the applicants’ protection visa application I would have been satisfied that the Tribunal did not err in finding that there had been notification of the name and address of an authorised recipient under s.494D.
  27. However, the implications of appointment of an authorised recipient are significant from the perspective of both an applicant and the Department. The Form, as completed, is inconsistent with the protection visa application. The deficiencies in this particular incomplete Form are reflected in subsequent correspondence from the Department sent to the applicant himself indicating that the form was ineffective in relation to his protection visa application and that correspondence about the protection visa application would be sent to the address given by him in his protection visa application.
  28. On the evidence before the Court I consider that the Form 1231 as completed in this particular case does not satisfy the requirement of written notice within s.494D(1) of the Migration Act 1958. Hence the Tribunal fell into jurisdictional error in the manner contended for by the applicants in finding that they were deemed to have been notified of the delegate’s decision by the letter of 10 August 2006 sent to Mr Khan and returned to sender.
  29. The only method of notification of the delegate’s decision addressed by the Tribunal in its decision was the purported notification sent to Mr Khan by letter dated 10 August 2006. The Tribunal did not consider whether or not there had been deemed or actual notification of the applicants on some other basis in the context of addressing the time limits for an application for review of the Tribunal decision. In these circumstances the application should be remitted to the Tribunal for redetermination according to law.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Barnes FM


Associate:


Date: 3 April 2008

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FMCA/2008/138.html