FEDERAL COURT OF AUSTRALIA
Uddin v Minister for Immigration & Multicultural Affairs [1999] FCA 1041
MIGRATION – ss 425 and 426 of Migration Act 1958 – whether applicant given “an opportunity” to appear and give evidence – whether applicant notified by RRT of entitlement to give evidence and nominate witnesses – where letter of notification sent to address for service – where no actual receipt of letter by applicant – whether Migration Regulations 1994 have a role to play in construing ss 425 and 426 of Migration Act 1958
WORDS AND PHRASES – “an opportunity”
Migration Act 1958 ss 412(1)(b), 425, 426, 428, 476(1)(a), 478, 504(3)
Migration Regulations 1994 regs 4.39, 4.41, 5.01, 5.03
Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 referred to
Minister for Immigration & Multicultural Affairs v Capitly [1999] FCA 193 referred to
Alkaab v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 178 referred to
Susiatin v Minister for Immigration & Multicultural Affairs (1998) 83 FCR 574 considered
Budiyal v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 166 cited
Sook Rye Son v Minister for Immigration & Multicultural Affairs (1999) 161 ALR 612 considered and followed
Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386 considered
Kamkar v Minister for Immigration & Multicultural Affairs (1996) 71 FCR 424 cited
Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 cited
Shrestha v Minister for Immigration & Multicultural Affairs (unreported, Sackville J, 13 October 1997) cited
NIZAM UDDIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 371 OF 1999
HELY J
4 AUGUST 1999
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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N 371 OF 1999 |
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BETWEEN: |
NIZAM UDDIN Applicant
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AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The decision of the Refugee Review Tribunal made on 1 April 1999 be set aside.
2. The matter be remitted to the Tribunal (differently constituted) for determination according to law.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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N 371 OF 1999 |
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BETWEEN: |
Applicant
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AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 On 21 August 1997, the applicant lodged an Application for Review with the Refugee Review Tribunal (“RRT”) in which review was sought of a decision made by the respondent’s delegate on 24 July 1997 refusing to grant a protection visa to the applicant. The form of application included the following information with respect to the applicant:
Home address: 27A Morehead Street
Redfern NSW Postcode 2016
Address for service: C/- Hidayah for Migration Media & Language Service
PO Box 708
Punchbowl NSW Postcode 2196
(We will send all documents to you at this address unless otherwise advised)
Mr R Raashed of Hidayah for Migration Media & Language Services was nominated in the form of application as the applicant’s adviser. The applicant answered “yes” to the question: “Do you wish copies of correspondence from the Tribunal to go to your adviser?”
2 Some time in February 1998 (Exhibit A) Mr Raashed changed his residence from Punchbowl to Sefton. At that time, he changed his address for business correspondence from PO Box 708, Punchbowl, NSW 2196 to PO Box 488, Chester Hill, NSW 2162. Sefton and Chester Hill are adjacent suburbs. Notification of that change in business address was given to the respondent. But there was no notification of any change in the applicant’s address for service – or at least none has been established before me.
3 On 9 March 1999 RRT wrote a letter addressed to the applicant at his notified address for service. It was sent by registered post to that address on 9 March 1999.
4 The letter purported to be a notice under s 426 of the Migration Act 1958 (“the Act”). For ease of reference, a copy of the letter is attached to these reasons. It will be noted that:
- the letter does not contain any notification of the date on which, or the time and place at which, the applicant may appear before RRT to give evidence.
- The letter requires the applicant to communicate an election to RRT by 30 March 1999 that he wants to give oral evidence, before RRT nominates a date for that purpose.
- Whilst the letter adverts to the fact that the applicant needs to tell RRT whether he wants to ask RRT to obtain evidence from other people, it fails to indicate that s 426(2) of the Act stipulates that written notice to that effect should be given to RRT within 7 days after being notified of the applicant’s entitlement to appear before RRT to give evidence.
5 It will also be noted that a copy of the letter was sent to Hidayah for Migration Media & Language, PO Box 488, Chester Hill, NSW 2162. That gives rise to the following inferences:
· RRT was aware of the change in the business address of the applicant’s adviser.
· Whilst the applicant had not notified RRT of any change in his address for service, RRT knew or ought to have known that a letter addressed to the applicant at his notified address for service, might well not come to his attention.
6 On 1 April 1999 RRT (Tribunal member: Chris Keher) gave his decision. RRT affirmed the decision not to grant a protection visa. An important factor in coming to that conclusion was the failure of the applicant to avail himself of the opportunity to attend an oral hearing and to explain matters which were of concern to RRT as a result of its review upon the papers.
7 During the course of its review of the applicant’s claims and evidence RRT made the following observations:
“On 9 March 1999 the Tribunal wrote to the applicant 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 applicant was advised that he was entitled to come to a hearing of the Tribunal to give oral evidence in support of his claims and was asked to tell the Tribunal within 21 days whether or not he wished to do so. The applicant was advised that if he did not contact the Tribunal within that 21 day period, it would be assumed that he did not wish to come to a hearing and that a decision could then be made without further notice. The letter was sent to the applicant at the nominated address in accordance with the regulations. It was sent by registered post, and has not been returned to the Tribunal. A copy was also sent to the applicant’s adviser. No response has been received to either letter.”
8 During the course of the hearing before me, an issue arose as to whether RRT’s decision was given on 1 April 1999, or 6 April 1999. Once that issue emerged, RRT’s file was tendered as Exhibit B. I am satisfied as a result of the examination of that file that the Tribunal Member gave his decision on 1 April 1999. The stamp and initials appearing at p 80 of the Relevant Documents (“RD”) dated 6 April 1999 was that of Juhan Lubek, recording the date on which written notification of the decision was given to the applicant (see Finalisation Record 1 April 1999 and letter 13 April 1999, Exhibit B).
9 The envelope containing the letter of 9 March 1999 which was addressed to the applicant at his notified address for service was marked “return to sender” by Punchbowl Post Office, apparently on 31 March 1999 and returned to RRT on 1 April 1999 (RD 87). However, the envelope was not opened until 6 April 1999 (RD 83). The inference which I draw is that Mr Keher was unaware, when he gave his decision on 1 April 1999, that the letter of 9 March 1999 had been returned to RRT unclaimed. Otherwise he could not have written his decision in the way in which he did, and I see no reason to impugn his honesty.
10 The applicant claimed that he telephoned RRT some time on 1 April 1999 and enquired about the outcome of his application. This is the first occasion on which the applicant claims to have contacted RRT since the lodgment of his application in 1997. In answer to a question as to what prompted the making of the call, the applicant said (T p 16/31):
“I was not contacted with my adviser since long time, and there was no news about my Tribunal case, and that’s why I myself was interested to ring to the RRT whether is there news about my case, is there any documents that I can send the documents to them.”
RRT’s established procedures required a file note to be made of this communication, if in fact it occurred. No note appears on the file of any such communication, although there is a file note of a communication on 6 April 1999 to which I will come shortly.
11 The respondent submitted that I should not accept the applicant’s evidence as to the fact of this conversation, particularly as there is no file note supporting its occurrence.
12 The applicant gave evidence through an interpreter. Although from time to time he answered questions before they had been interpreted for him, I am satisfied that he genuinely needed the services of an interpreter, and I am conscious of the difficulties involved in assessing evidence given in that way. But there are contradictions and improbabilities in that evidence such that I would not be prepared to accept it without corroboration, of which there is none. For example, in par 6 of his Statutory Declaration the applicant says:
“Mr Raashed told me earlier, that his change of address has been notified to the Refugee Review Tribunal. According to him, this change was effective for all of his clients. I therefore, felt no need to notify the RRT once again. As my residential address of 27A Morehead St Redfern NSW 2016, was already given to the Refugee Review Tribunal, I was hoping that if the need be, the Tribunal would contact me through this address."
Yet in his oral evidence he initially claimed that he was unaware that his adviser had changed his address because there had been no contact between them for a long time because the applicant did not have the funds to pay for his services (T p 11/15). Then he said that he did not know that his adviser had informed RRT of the changed address (T p 11/20), then that he knew his adviser had changed his address (T p 11/25) but did not know the new address. His final position was that the applicant did not change his address, only his adviser did, and he thought RRT would send him a letter to his residential address (T p 15/8). He initially claimed that he was first told that his claim to a protection visa had been rejected by the Tribunal on 1 April 1999 (T p 17/10). Then he claimed that on 1 April 1999 he was told by RRT that a letter had been sent to him, but RRT did not tell him his claim had been rejected (T p 17/15). Whilst RRT told him a letter had been sent, he did not know what it was about (T p 33/25). It was not until 6 April 1999 that he learnt of the rejection of his claim (T p 18/5).
13 The applicant claimed that after speaking to RRT on 1 April 1999 he went to Mr Raashed’s office and “with great difficulty” he was able to locate RRT’s letter of 9 March 1999 copied to Hidayah for Migration Media & Language. With the help of a friend, on 1 April 1999 he prepared the letter bearing the date 30 March 1999 which appears at RD p 90. The date on the letter was “a mistake” (T p 20/4).
14 Because of the Easter break, it was not until 6 April 1999 that he was able to attend at RRT when he unsuccessfully attempted to lodge the documents at RD 90, 91 and 91A, but he successfully lodged the Notification of Change of Address appearing at RD 89. An officer of the respondent made the following file note on 6 April 1999:
“6.4.99 Applicant came to front counter saying he did not receive his offer of hearing letter as his adviser was away. His postal address at the time of the letter being sent out was c/- his adviser. I informed the member who told me it was too late for the applicant to have a hearing as he had already signed a decision made on the papers. I told the applicant who gave me a change of postal address. CMS updated. A Jouana.”
By this time, RRT had already made its decision, and was functus officio: Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301. The documents at RD 90, 91 and 91A were then posted to RRT by the applicant and received by RRT on 8 April 1999.
15 In the view I take, whether or not the applicant had a telephone conversation with “the reception” at RRT on 1 April 1999 is probably irrelevant to the potential operation of s 476(1)(a). It might only be of significance if it demonstrated that the decision maker knew, prior to and at the time of his decision that the intended notification under s 426 had not reached the applicant. I am satisfied that on 1 April 1999 the decision maker was ignorant of that fact.
16 However, in case this matter should go on appeal I should record my finding on the factual issue. Given the applicant’s claim that he telephoned the reception and left his telephone number (T p 23/23), the departmental practice as to the making of file notes of such conversations, the absence of a file note, and the unsatisfactory features of the applicant’s evidence referred to above, I am not satisfied that a communication to the effect of that contended for by the applicant occurred. But for the fact that I was not impressed by the applicant as a witness on whose evidence reliance could be placed, I would not give primacy to the absence of a file note over sworn testimony that a communication occurred, but in view of my generally unsatisfactory impression of the applicant as a witness, the absence of a file note is something which is proper to take into account. So too is the fact that the “friend” who assisted in the preparation of the letter bearing the date 30 March 1999 was not called to give evidence. Nor was Mr Raashed, or anyone from his office.
The Act and the Regulations
17 Section 425 of the Act obliges RRT, in the present circumstances, to give the applicant an opportunity to appear before it to give evidence. Section 426(1)(a) of the Act places an obligation on RRT to notify the applicant that he is entitled to appear before the Tribunal to give evidence. Sections 425A and 426A which were introduced into the Act by the Migration Legislation Amendment Act (No 1) 1998, did not come into effect until 1 June 1999, hence they are irrelevant for present purposes.
18 Regulation 4.39 makes provision for lodgment of an address for service – an address at which documents relating to a review may be sent to an applicant. An address for service may be, but need not be, the applicant’s residential address (4.39(4)). Regulation 4.41 provides that if a person has lodged an address for service under Regulation 4.39, a document which is to be given to or served on the person for the purposes of a review by RRT may be posted to, or left at, the address for service, if no other provision as to the manner of giving or serving the document is made by the Act or the Regulations. The effect of Regulation 5.03, in the form which it took at the relevant time, was that for the purposes of the Act and the Regulations, but subject to the Act and specific provision elsewhere in the Regulations, a document (including, Regulation 5.01, a letter or a written invitation or notification) sent to an address in Australia is taken to be received seven days after the date of the document, provided it is sent within seven days of its date.
Sections 425 and 426
19 Notwithstanding the reservations as to the applicant’s evidence earlier expressed, I accept that the intended notification under s 426 did not actually come to the applicant’s attention until it was too late for him to take advantage of it. I think that he became aware of the letter sent to his adviser at some stage between 1 and 6 April 1999. Precisely when does not matter.
20 That being so, as a pure matter of fact, the applicant was not given an opportunity to appear before RRT to give evidence, nor was he notified of his entitlement to appear before RRT to give evidence. As a result of a break down in communications, (and the absence of his adviser overseas) the statutory entitlement flowing from s 425 was effectively denied to him.
21 The respondent submitted that the applicant selected the address for service; he was aware of its importance; the onus lay upon him to notify the respondent of any change to it, and in any event the s 426 notification was copied to the applicant’s adviser at the adviser’s current business address. The Regulations operated to deem the letter of 9 March 1999 to have been received on 16 March 1999, hence there was a deemed notification on that date to the applicant of his entitlement to appear before RRT to give evidence. Section 426 is thus complied with. The deemed receipt of the notification is “for the purposes of the Act”, including s 425. The applicant has been given the opportunity for which s 425 makes provision if RRT has done what the Regulations require of it so as to notify the applicant of his entitlement in that respect.
22 The authorities establish that s 425 and s 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 & Multicultural Affairs v Capitly [1999] FCA 193. But, unless a s 426 notice was given to the applicant, the proposition that he was given an opportunity to appear before RRT to give evidence, does not get off the ground. Even if the effect of the regulations is such that the s 426 notice is deemed to have been received by the applicant such that the requirements of s 426 are satisfied, there is or may be a further question as to whether the obligation imposed upon RRT by s 425 is satisfied where, as a matter of fact, the opportunity for which s 425 makes provision is not extended to the applicant.
23 Regulation 5.03, in the form in which it stood prior to 1 July 1997, was expressed to apply for the purposes of the Regulations and subject to specific provision elsewhere in the Regulations. In a series of cases reviewed by Tamberlin J in Alkaab v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 178 it was held that a regulation in that form could not apply to a notification requirement contained in the Act.
24 The current form of Regulation 5.03 was considered by Beaumont J in Susiatin v Minister for Immigration & Multicultural Affairs (1998) 83 FCR 574 in the context of s 478 of the Act, which requires that an application for review under s 476 of the Act must be lodged within a specified period of the applicant being notified of the decision. His Honour proceeded on the basis that Regulation 5.03 was a deeming provision and that the applicant was to be taken to have been notified of the decision on the deemed date of receipt of the document embodying the decision. The application for review was thus one day out of time.
25 It is implicit in the decision of Tamberlin J in Budiyal v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 166, 172G that Regulation 5.03 applies to a notification under s 426, although there is no specific discussion of the point.
26 Sook Rye Son v Minister for Immigration & Multicultural Affairs [1999] FCA 7; 161 ALR 612 is a decision of the Full Court. Neither Moore J at [33] nor Katz J [55] expressed a view as to whether deemed notification pursuant to Regulation 5.03 can suffice for the purposes of s 426. Burchett J held that Regulation 4.41 did not apply to a person who was in immigration detention, because of the specific provision otherwise made by the Regulations for service in such case. The applicant was in immigration detention and the specific provision was not complied with. However, his Honour went on to hold that Regulations 4.41 and 5.03 do not impact upon the requirement of s 426 by which RRT “must notify the applicant” of the rights specified in the section. Given the conclusion which his Honour reached in relation to the inapplicability of Regulation 4.41 to a person who was in immigration detention, his Honour’s observations in relation to s 426 are dicta, but they represent a considered decision of a judge of this Court on the question.
27 His Honour described the proposition that Regulation 5.03 applies to s 426 as an absurdity, and that the introductory words of the Regulation “subject to this Act” denied the Regulation any operation in respect of s 426(1). If, contrary to that view, the regulation had the effect of converting the s 426 obligation to notify an applicant of certain matters into an obligation to be satisfied by the service of a document, and then deeming the service and notification to have occurred at a time when it had not occurred, then the Regulation would not be within the s 504(3) Regulation making power.
28 His Honour considered the earlier authorities on Regulation 5.03 in the form which it took before and after the 1 July 1997 amendments including the decision of Beaumont J in Susiatin. His Honour considered that the authority of that decision was undermined by reason of the failure to draw to Beaumont J’s attention the decision of Merkel J in Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386, in the context of s 478 of the Act, where his Honour concluded that actual notice of the decision was required before a person’s right of review could expire.
29 The respondent submitted that the decision of Burchett J was wrong and that I should not follow it. The respondent’s submissions largely involved a comparison between passages in various judgments which touch and concern this question which I do not find very profitable to pursue.
30 If one approaches the matter as a question of principle, one would conclude that s 425 requires 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 RRT “must notify”, the s 425 duty is not necessarily performed or discharged by service, or deemed service, of a document. To borrow the language of North J in Kamkar v Minister for Immigration & Multicultural Affairs (1996) 71 FCR 424, 427, there is no linguistic point of contact between s 425 and Regulations 4.41 and 5.03, suggesting that those Regulations were not meant to play a role in respect of s 425.
31 In the present case, the opportunity for which s 425 makes provision was claimed to have been extended to the applicant by posting a letter addressed to the applicant, admittedly at a notified address for service, but when RRT knew of facts which ought to have alerted it to the fact that a letter sent in that way might well not come to the applicant's attention. If, as was likely to be the case, a letter sent in that way did not reach the applicant, then it cannot meaningfully be said that RRT has given to the applicant the opportunity which s 425 requires to be extended to him. The fact that the letter was copied to the adviser cannot alter the position unless the adviser conveyed its terms to the applicant. Thus, on the facts of this case, there has been a failure to comply with s 425, whatever view is reached as to whether s 426 requires actual notification.
32 The well established practice of the Court is that a single judge follows earlier decisions of other single judges unless he or she thinks they are clearly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233, 255. But the decisions of Burchett J in Sook Rye Son and Beaumont J in Susiatin are in conflict. The decision of Burchett J is, in my view, in harmony with the decision of Merkel J in Wang and with that of North J in Kamkar. Those decisions were based upon the construction of the Act, rather than upon the form which the Regulations then took. Neither was referred to by Beaumont J in Susiatin.
33 In Shrestha v Minister for Immigration & Multicultural Affairs (unreported, 13 October 1997) Sackville J reviewed the cases in which a different result was reached in relation to s 412(1)(b) of the Act, but his Honour did not call into question the correctness of the decisions that s 428 operated in relation to actual notification, rather than deemed notification.
34 The decision of Burchett J is a decision directly on s 426 of the Act. In my view, neither the conclusion which his Honour reached, nor the reasoning on which it is based can be characterised as clearly wrong. In those circumstances I think that I should follow his Honour’s decision, with the result that the procedures required to be observed by s 426 of the Act in connection with the making of the decision were not observed, as the applicant was not notified prior to the decision of the matters referred to in s 426(1)(a).
35 Assuming (contrary to my findings) that the operation of the Regulations is such that the applicant is deemed to have been notified of the matters referred to in the letter of 9 March 1999, and is taken to have been given the opportunities referred to in that letter, further issues would arise as to whether the terms of the letter were such as result in compliance with s 425(1)(a) and s 426(1)(a) and (b).
36 There are two potential problems with the form of that letter. First, in Sook Rye Son Moore J [at 32] held that a letter which did not inform an applicant of the period in which she was to advise RRT of the names of witnesses from whom the applicant wanted RRT to obtain evidence did not comply with s 426(1)(b). Burchett J agreed [4]. Katz J did not consider it necessary to express a view [55]. Second, there is or may be a question as to whether it is open to RRT to make the s 425(1)(a) entitlement conditional upon the applicant electing to take advantage of it by a specified date, even if the date specified in that regard is not unreasonable. However, in view of my conclusion it is not necessary for me to reach a conclusion on these further issues.
Conclusion
37 The decision of RRT made on 1 April 1999 should be set aside and the matter remitted to RRT for determination according to law.
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I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. |
Associate:
Dated: 4 August 1999
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R Raashed appeared with leave for the applicant |
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Counsel for the Respondent: |
T Reilly |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
21 July 1999 |
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Date of Judgment: |
4 August 1999 |
Refugee Review Tribunal
YOUR REF: FILE NUMBER:N97/119021
CONTACT OFFICER: Gosia Wiraszka
TELEPHONE: (02) 9951 5841
Mr Nizam Uddin
C/‑Hidayah for Migration Media&Lang Serv
P 0 Box 708
PUNCHBOWL NSW 2196
9 March 1999
Dear Mr Uddin
RE: APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS)
NOTICE UNDER SECTION 426 OF THE MIGRATION ACT 1958
The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now entitled to come to a hearing of the Tribunal to give oral evidence in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person.
You now need to tell the Tribunal
+ whether or not you want to come to the Tribunal to give oral evidence; and
+ whether or not you want to ask the Tribunal to obtain evidence from other people.
PLEASE COMPLETE THE ENCLOSED "RESPONSE TO HEARING OFFER" FORM AND RETURN IT TO THE TRIBUNAL BY 30 March 1999.
If you want the Tribunal to take oral evidence from another person or persons, please complete the "witness" details on the enclosed form. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name.
If you have any new documents or written arguments that you would like the Tribunal to consider, you should send them to the Tribunal with the completed form. Any documents you send must be in English, or must be translated into English by an accredited translator.
If you tell us that you want to give oral evidence, we will write to you shortly and advise you of your hearing date.
Locked Bag A3, Sydney South NSW 1235
Level 29, Pacific Power Building, 201 Elizabeth Street, Sydney NSW 2000
Telephone: (02)99515800 Toll Free 1800 814 593 Facsimile: (02) 9951 5988
Page 2
If you have any questions, please TELEPHONE Gosia Wiraszka on (02) 9951 5841. If
you live outside Sydney please ring 1800 814 593 (for the cost of a local call). If you need
an interpreter to make this call, please ring the Translating and Interpreting Service (TIS)
on 131 450.
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Yours sincerely
For Deputy Registrar
Sydney Registry
encls: "What is a Hearing?' brochure; multilingual advice
cc: Hidayah For Migration Media & Language
PO BOX 488
CHESTER HILL NSW 2162
