FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73

MIGRATION – obligation to invite applicant to hearing under s 425 of the Migration Act 1958 (Cth) – whether obligation satisfied by compliance with s 425A – letters addressed to residential address returned – letter sent to mailing address not returned – no response to invitation to hearing – whether Tribunal obliged to take further steps to invite applicant – whether the Federal Magistrates Court erred in finding that the Refugee Review Tribunal had not satisfied the obligation in s 425 to invite the respondent to a hearing

Held: TheFederalMagistrates Court erred in finding that the Refugee Review Tribunal had not satisfied its obligation in s 425

Migration Act 1958 (Cth), ss 425, 425A, 426A, 441A, 441C, 441G, 474

Budiyal v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 82 FCR 166 distinguished

Haddara v Minister for Immigration and Multicultural Affairs (1999) 166 ALR 401 distinguished

Minister for Immigration and Multicultural Affairs v Capitly (1999) 55 ALD 365 distinguished

NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 followed

SZAXF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 496 referred to

The Queen v The Australian Broadcasting Tribunal and Ors; Ex parte Hardiman and Ors (1980) 144 CLR 13 referred to

Uddin v Minister for Immigration and Multicultural Affairs (1999) 165 ALR 243 distinguished

VNAA and Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 followed

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL v SZFHC

NSD 1884 of 2005

SPENDER, FRENCH AND COWDROY JJ

19 MAY 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The orders of the Federal Magistrates Court of 15 September 2005 be set aside.

2.         The matter be remitted to the Federal Magistrates Court to be determined according to law.

3.         The respondent pay the first-named appellant’s costs of this appeal and of the hearing before the Federal Magistrates Court.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal by the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) from the judgment of Scarlett FM delivered on 15 September 2005. The notice of appeal filed on 6 October 2005 names the Refugee Review Tribunal (‘the Tribunal’) as the second appellant, and purports to be an appeal also by the Tribunal. The appeal is brought on the ground that Scarlett FM erred in finding jurisdictional error in the decision of the Tribunal refusing a protection visa to the respondent to the appeal.

2                     The reference to the Tribunal as an appellant is unusual having regard to the decision of the High Court in The Queen v The Australian Broadcasting Tribunal and Ors; Ex parte Hardiman and Ors (1980) 144 CLR 13 at 35-6, where the Court said:

‘In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.’

3                     The written submissions filed by the Minister do not purport to be on behalf of the Tribunal.

Background

4                     The respondent is a citizen of Egypt who came to Australia on 24 October 1998. On 1 June 2000 he lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) for a protection visa.  On the application form for his protection visa provided to the Department, the respondent nominated his current residential address in Australia as ‘5/175 Haldon St, Lakemba NSW’. The respondent also appointed a registered migration agent, Pacific Migration Consultancy (‘the migration agent’), to act on his behalf. The agent’s address given was ‘PO Box 547, Lakemba NSW’ and the ‘Appointment of Person to Act as Agent’ form stated:

‘All correspondence related to my sponsorship/application is to be sent to the above agent. If any information, additional documentation, or action is required on my case, the above agent is to be contacted.’

5                     In late 2001, whilst the respondent’s application was still under consideration by the Minister’s delegate, the respondent changed his residential address. Neither the respondent nor his agent notified the Department of the respondent’s change of residential address.

6                     On 16 April 2002 the Department wrote to the respondent at the residential address indicated in the application for a protection visa, seeking his comment on information contained in the letter, and a copy of such letter was sent to his migration agent at the agent’s address. The letter to the applicant was returned unclaimed, but the letter to the agent was not.

7                     The applicant responded to the Department’s letter of 16 April 2002 by letter of 7 May 2002.

8                     On 16 May 2002 the delegate wrote to the respondent informing him that his application for a protection visa had been refused. A copy was sent to both his residential address, as indicated in his application for a protection visa, and to his migration agent.  The letter forwarded to that residential address was again returned unclaimed. The letter to the migration agent was not returned unclaimed.

9                     On 5 June 2002, the respondent lodged an application with the Tribunal for a review of the delegate’s decision. This permits the inference the respondent learnt in some way of the delegate’s decision.

10                  The application form for review by the Tribunal contained as the ‘Home Address’ of the respondent the same address as appeared on the application to the Department, namely the respondent’s former residential address and not his then current address. He indicated his ‘Mailing Address’ as ‘PO Box 547 Lakemba NSW 2195’, which was the postal address of the migration agent nominated in the application for a protection visa, although the form did not indicate that it was his agent’s address. In the section of the form which requested details of any ‘authorised recipient’ who could receive correspondence on behalf of the respondent, the respondent had written ‘N/A’, thereby indicating that he was not represented by any migration agent.

11                  In the proceedings before Scarlett FM, the respondent made statements indicating that his migration agent had inserted the incorrect address on the application for review  form. He said that he had signed the completed form without reading it. He said that because his English was not very good at that time, he had relied upon his migration agent to complete the form correctly.

12                  On 2 April 2003 the Tribunal wrote to the respondent inviting him to appear at a hearing of the Tribunal to be held at 11.30 am on 20 May 2003. The letter enclosed a ‘Response to Hearing Invitation’ form for the respondent to return to the Tribunal to advise whether he wished to attend the hearing. The letter was sent to the respondent’s mailing address (which was in fact the address of the migration agent), as well as to the residential address nominated in his application for review to the Tribunal.  One of those letters was returned marked ‘unknown at address’ on 8 April 2003. It is not possible to say which one of those letters was the one returned, although it is likely, given the past history of returned letters as set out above, that it was the letter sent to the respondent’s stated home address.

13                  The ‘Response to Hearing Invitation’ form was not returned to the Tribunal, and the respondent did not attend the hearing on 20 May 2003.  Accordingly the Tribunal proceeded to determine the application in the respondent’s absence pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Migration Act’).

14                  Before proceeding to its decision, the Tribunal completed an internal checklist to ensure that it did not have any more recent contact details for the respondent. The checklist, dated 27 May 2003, stated, amongst other things:

‘3.        Date copy on [sic] invitation sent to current adviser (at correct address, If applicable: not applicable

…

9.         Date adviser contacted for more recent address (record placed on file): not applicable’

15                  On 28 May 2003 the Tribunal made its decision affirming the decision of the Minister’s delegate.  The Tribunal found that it could not be satisfied that there was a real chance that the respondent might face persecution in the foreseeable future and affirmed the decision not to grant a protection visa. 

16                  In so deciding, the Tribunal said:

‘On 2 April 2003 the Tribunal wrote to the applicant at both his address for service and his residential address advising that it had considered all the papers relating to this 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 20 May 2003. The applicant was advised that if he did not attend the hearing and a postponement was not granted that the Tribunal may make a decision on his case without further notice. The letter sent to his address for service was not returned. The letter sent to his residential address was returned marked “Unknown at this address”. The applicant does not have an adviser and has not provided a telephone number. On 27 May 2003 the Tribunal checked that the letters were correctly addressed using the latest information provided to the Tribunal. On 27 May 2003 DIMIA files were also checked and they confirmed that the Department had no more recent address for the applicant and that, according to DIMIA movement records, the applicant had not departed Australia. No response has been received and the applicant did not attend the scheduled hearing. In these circumstances the Tribunal is satisfied that it has discharged its obligation to provide the applicant with the opportunity to give oral evidence and present arguments before it. This matter has therefore been determined on the evidence before the Tribunal.’

17                  After referring to some of the claims of the respondent, the Tribunal said:

‘The Tribunal has been unable to have direct evidence from the applicant that would permit the Tribunal to be satisfied that the applicant genuinely still holds the above claims. Such evidence might include the applicant testifying as to the degree of his involvement in any Jama’et Al Tableegh activities in Australia, as well as whether he has been involved in any actual proselytising activities while in Australia. The Tribunal would also need to have evidence as to his plans upon return to Egypt. Without such evidence, the Tribunal cannot be satisfied that any fears the applicant has are well founded.’

18                  By letter dated 30 May 2003 the Tribunal notified the respondent at his mailing address that the decision would be handed down on 24 June 2003. The decision was handed down on 24 June 2003, and the Tribunal on the same day sent a letter to the respondent at his mailing address, notifying him of the decision. There is no evidence that either letter was undelivered.

19                  Thereafter no steps were taken by the respondent for eighteen months. On 14 December 2004 the respondent appointed a new migration agent. On his ‘Authorisation of a person to act and receive communication’ form he described his residential address as ‘1/145 Haldon St Lakemba’. Shortly thereafter on 20 December 2004, the respondent lodged with the Federal Magistrates Court an application under s 39B of the Judiciary Act 1903 (Cth). The application sought (amongst other things) a declaration that the decision of the Tribunal was not a ‘privative clause decision’ within the meaning of s 474 of the Migration Act and an order setting the decision aside.

20                  The application was made on three grounds: first, that the Tribunal’s decision ‘committed jurisdictional error of law’ because it had misinterpreted the definition of ‘persecution’ contained in s 91R of the Migration Act; second, that the respondent ‘had a migration adviser at the time the hearing was scheduled. The RRT had record of the adviser however no notification was made with respect to hearing’; and third, that the Tribunal ‘based much of its findings on independent country information which was not directly relevant’.

21                  The respondent filed an amended application on 26 April 2005. The first and third grounds remained unamended. The second ground was expressed in terms which elaborated his complaint that he had received no notification of the hearing of the Tribunal. In particular, the respondent claimed that ‘It was the responsibility of the RRT to take all reasonable steps to contact [him].’

22                  The application was heard by Scarlett FM on 15 September 2005. On the same day, his Honour made orders quashing the decision of the Tribunal and remitting the matter to the Tribunal for reconsideration.

23                  The Reasons for Judgment of the Tribunal are dated 27 September 2005. Scarlett FM found that the Tribunal had not taken sufficient steps to ensure the respondent was notified of the hearing, and in particular had not properly investigated the items on its internal checklist. His Honour said:

‘35.      Quite clearly, the Tribunal had checked its own file and checked the application for review. It appears, however, that the check of the application for a protection visa, where the name of the Applicant’s migration advisor and, importantly, the postal address of that migration advisor, was either not checked or not checked thoroughly enough.

36.       A thorough check would have revealed that the Applicant’s postal address, as given in the application for review, and the postal address that appeared in the application for a Protection visa were one and the same and that that was the postal address of the Pacific Migration Consultancy. Whether a check with the Pacific Migration Consultancy, if that correlation had been ascertained, would have provided the Tribunal with any further information about contact with the Applicant is a question that remains unanswered.’

24                  Given the history of letters returned undelivered to the residential address provided by the respondent in his application for a protection visa, but the nonetheless positive and timely responses to those letters by the respondent, one might infer that letters addressed to him at his agent’s address (which letters were not returned undelivered) were efficacious to inform the applicant of the contents of those letters.

25                  His Honour considered that the attendance at a hearing at the Tribunal was ‘fundamental to the review process’ and said that the consequences of the Tribunal exercising its power under s 426A of the Migration Act were so serious that the Tribunal was obliged not only to comply with the legislation, but to comply with its own procedures designed to enable it to comply with the legislation: see at [38]. On these grounds his Honour found that the Tribunal had fallen into jurisdictional error. Accordingly the Tribunal’s decision was not a ‘privative clause decision’ under s 474 of the Migration Act, and no time limits for review were applicable, and the application was upheld.

The statutory framework

26                  Section 422B(1) of the Migration 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.’

27                  However, this section was introduced by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), which commenced operation on 4 July 2002. The application to the Tribunal in this case was received by the Tribunal on 5 June 2002, before the commencement of this section. It therefore has no application to the circumstances of the present case.

28                  Sections 425 and 425A of the Migration Act make provision for the Tribunal to invite applicants for review to appear before the Tribunal. Section 425 relevantly provides:

‘(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.’

Section 425A relevantly 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 …’

29                  Section 441A of the Migration Act specifies methods by which delivery of documents by the Tribunal may be effected. Subsection (4) provides:

‘(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 by 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.’

30                  Under s 441C(3) a person is deemed to have received a document sent by the Tribunal seven working days after the date of the document.

31                  Section 441G(1) of the Migration Act provides:

‘(1)      If:

(a)               a person (the “applicant”) applies for a 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.’

32                  Section 425 of the Migration Act imposes an obligation on the Tribunal to invite an applicant to appear before it to give evidence and present arguments before the Tribunal makes its decision. Section 426A of the Migration Act provides that if an applicant is invited to attend but fails to appear, then the Tribunal may make its decision without taking any further action to allow an applicant to appear. Section 425A sets out steps which the Tribunal must take in relation to an invitation to an applicant to appear.

33                  The question to be determined by the Court is whether compliance with s 425A of the Migration Act exhausts the obligation of the Tribunal to invite an applicant under s 425, or whether additional steps must be taken by the Tribunal to comply with its obligation under s 425. It is of course clear that internal management mechanisms within the Tribunal, such as the checklist in the present case, cannot alter the extent and content of the duty imposed by the statute.

34                  The Minister submits that ss 425 and 425A are clearly connected, with s 425 setting out the obligation on the Tribunal and s 425A setting out the methods by which that obligation may be complied with.  Accordingly, the Minister says compliance with s 425A constitutes compliance with s 425. The Minister refers to VNAA and Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 (‘VNAA’), in which Sundberg and Hely JJ said (at 413):

‘The claim put to the primary judge and repeated before us that the methods specified in s 441A by which a document may be given to a person do not apply to an invitation given under s 425 must be rejected.  Section 441A applies only when a provision requires or permits the Tribunal to give a document to a person and states that it must do so by one of the methods specified in the section.  Section 425A so states.  Section 425 does not.  It is, however, plain that the sections are to be read together.  Section 425 merely requires the Tribunal to invite an applicant to appear.  It contains no mechanism by which the invitation is to be extended.  That is done in s 425A.  If the Tribunal invites the applicant to appear, it must be done in the manner there set out, namely by notice specifying the date, time and place at which the applicant is to appear.  That this is the proper construction of the provisions is established by decisions at first instance, with which we agree.  See QAAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs  [2002] FCA 1220 at [13] per Cooper J, SAAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 101 at [8] per Mansfield J,  Mohammad v Minister for Immigration and Multicultural Affairs [2000] FCA 466 at [17] per Katz J and NAOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 820 at [19] per Sackville J.  It would be absurd to treat Parliament as intending by s 425 that by some unstated means the Tribunal is to issue an invitation to appear before the Tribunal, and by s 425A that it is to dispatch a notice containing details of the date, time and place for the appearance, but not containing the invitation itself.’ (original emphasis)

35                  The respondent submits that the obligation imposed on the Tribunal by s 425 extends beyond the method of notification provided in s 425A. He says that following the prescribed method of inviting an applicant to appear does not exhaust the obligation on the Tribunal contained in s 425 to invite an applicant to appear. The respondent submits that the obligation under s 425 is to provide an applicant with a real opportunity to appear before the Tribunal: see Budiyal v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 166 (‘Budiyal’); Minister for Immigration and Multicultural Affairs v Capitly (1999)55 ALD 365 (‘Capitly’); Haddara v Minister for Immigration and Multicultural Affairs (1999) 166 ALR 401 (‘Haddara’). The respondent says that the obligation to provide the applicant with a real opportunity to appear before the Tribunal may require the Tribunal to take further steps in addition to complying with s 425A. The respondent says that s 425A merely sets out the minimum requirement which the Tribunal must comply with when inviting an applicant to appear before it.

36                  In support of its submission, the respondent refers to Uddin v Minister for Immigration and Multicultural Affairs (1999) 165 ALR 243 at [30] (‘Uddin’), in which Hely J observed:

‘If one approaches the matter as a question of principle, one would conclude that s 425 requires the RRT to give the applicant a real opportunity to appear before it and give evidence, and that it is a necessary, but perhaps not a sufficient, step in the performance of that duty, that actual notice (subject, perhaps, to the regulations) of the s 426 entitlements be given to the applicant. Even if the regulations are effective so as to provide for deemed receipt of a document, and even if deemed receipt of a document amounts to performance of the statutory obligation that the RRT “must notify”, the s 425 duty is not necessarily performed or discharged by service, or deemed service, of a document.’

37                  The respondent also referred to Hely J’s comments at [22], where his Honour said:

‘The authorities establish that ss 425 and 426 are cumulative requirements in the sense that the giving of a notice under s 426 will not necessarily exhaust the s 425 obligation: Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193.’

38                  The respondent says that the Tribunal was on notice that he may not have received the letter, because the ‘Response to Hearing Invitation’ form was not returned, because the letter to his residential address was returned unclaimed, and because he did not appear at the hearing. The respondent says that in these circumstances, the Tribunal was obliged under s 425 to search both its own and the Department file to attempt to find another method of contacting the respondent. He says that in this case, the Tribunal had an obligation to contact the migration agent listed in the respondent’s Department file to find more recent contact details, and possibly also to ring the residential telephone number contained in the respondent’s protection visa application.

39                  The submissions of the respondent in this respect are rejected. In view of the decision in VNAA, it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s 425A (in fact, two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.

40                  Our conclusion is reinforced by a closer consideration of the decisions relied upon by the respondent, and in particular Uddin. Section 425 of the Migration Act in its present form has only existed since 1 June 1999, when the amendments effected by Act No 113 of 1998 came into effect. The application under consideration in Uddin was decided under a previous version of s 425, which provided:

‘(1)      Where s 424 does not apply, the Tribunal:

(a)        must give the applicant an opportunity to appear before it to give evidence; and

            …’

41                  The comments of Hely J in Uddin are relevant to the former s 425 of the Migration Act, which requires the Tribunal to provide an applicant with an opportunity to appear. The current version of s 425 is in different terms. It requires that the Tribunal invite an applicant to appear, and provides a method which the Tribunal must follow to satisfy this requirement.

42                  For the above reasons, Scarlett FM erred in finding that the decision of the Tribunal was affected by jurisdictional error because of a failure to comply with s 425A. The orders of the Federal Magistrates Court of 15 September 2005 should be set aside.

43                  Since the Federal Magistrates Court has not considered the other claims of jurisdictional error made by the respondent, the matter should be remitted to the Federal Magistrates Court to be considered according to law.

44                  The respondent should pay the first-named appellant’s costs of this appeal and of the hearing before the Federal Magistrates Court.

Associate:

Dated:              19 May 2006