FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275

MIGRATION )

REFUGEES ) – whether reg 5.03 is valid in its application to a notice under s 425A of the Migration Act – whether, if valid, on its true construction the regulation does not apply to such a notice – effect of reg 4.35D – whether “the last address for service provided by the applicant in connection with his or her application for review” under s 441A is the last address given to the RRT or may be an address given to the Court and the Minister in proceedings reviewing a final decision of the Tribunal – meaning of “in connection with” – whether Tribunal, after giving a decision, is functus officio – whether the invitation referred to in s 426 must be a continuing invitation – whether the decision was based on a particular fact which did not exist and of which there was no evidence, that the applicant had ample opportunity to appear – discussion of Curragh Queensland Mining Ltd v Daniel

WORDS AND PHRASES – “in connection with”.

Migration Act 1958 (Cth), ss 417, 425, 425A, 426, 426A, 441A, 476(1)(g), 476(4)(b)

Administrative Decisions (Judicial Review) Act 1977, s 5(3)

Migration Regulations 1994 (Cth), regs 4.35D, 5.03

Minister for Immigration and Multicultural Affairs v Singh (2000) 171 ALR 53 considered

Re V.G.M. Holdings, Ltd [1941] 3 All ER 417 referred to

Mordue v Palmer (1870) 6 Ch App 22 referred to

Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 followed

Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 referred to

Minister for Immigration and Multicultural Affairs v Semunigus [2000] FCA 240 referred to

Rahman v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 391 referred to

Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584 referred to

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

Capitly v Minister for Immigration and Multicultural Affairs (Burchett J, unreported, 24 September 1998) referred to

Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 applied

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to

Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 applied

Charaev v Minister for Immigration and Multicultural Affairs [2000] FCA 865 referred to

Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352 referred to

Coventry and Solihull Waste Disposal Co Ltd v Russell (Valuation Officer) [1999] 1 WLR 2093 applied

Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 applied

The Queen v Isaac; Ex parte Transport Workers’ Union of Australia (1985) 159 CLR 323 applied

Claremont Petroleum NL v Cummings (1992) 110 ALR 239 applied

Strachan v Marriott [1995] 3 NZLR 272 applied

Transurban City Link Ltd v Allan (1999) 95 FCR 553, [1999] FCA 1723 applied

Australasian Meat Industry Employees Union v Hamberger [2000] FCA 1197 referred to

Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 followed

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to

Smith v Samuels (1976) 12 SASR 573 referred to

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v ELIAS KANCHAN MOHAMMAD

N 435 of 2000

BURCHETT, BRANSON AND MARSHALL JJ

18 SEPTEMBER 2000

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BURCHETT J

1                     It is a cliché that hard cases make bad law. In the present appeal, the Minister does not shrink from accepting that his argument, if correct, would show the case to be very hard. For his contention is that the respondent, an applicant for a protection visa as a refugee, who has been held by an unchallenged decision of the Court to have been denied the form of justice promised by the Migration Act 1958 (Cth) at a first hearing before the Refugee Review Tribunal, should now be held to have lost irrevocably his right to a second hearing because he did not receive the notice of it that was posted to the address on the Tribunal’s file. A full court has ruled otherwise in a case directly in point (Minister for Immigration and Multicultural Affairs v Singh (2000) 171 ALR 53), but the Minister says that authority is plainly wrong, and should not be followed. In other words, he says it is bad law. Before proceeding further with these reasons, I should point out that any assumption the respondent would then be cast out without remedy would seem oddly at variance with the obvious intention of Parliament in enacting s 417 of the Act. That section gives the Minister a discretion to override the sometimes harsh results of draconian rules in the legislation, a discretion the exercise of which (at least to secure a further hearing) would obviously be called for in this case, where the decision against the respondent was based on his failure to attend a hearing of which he was admittedly unaware.

2                     The circumstances need little explanation. Mr Mohammad (the respondent) is a Bangladeshi citizen who sought, on 1 May 1997, review by the Refugee Review Tribunal of an adverse decision upon his application for a protection visa. In doing so, he furnished an address for service, being 9/18 Evans Avenue, Eastlakes, stating that it was also his home address. The Tribunal, on 3 November 1998, determined the matter against Mr Mohammad, so he made an application to this Court for review of its decision. That application was successful, judgment being delivered by Moore J on 28 April 1999, when the case was remitted to the Tribunal for determination according to law: Mohammad v Minister for Immigration and Multicultural Affairs [1999] FCA 508.

3                     During the period between the Tribunal’s decision of 3 November 1998, which affirmed the refusal to him of a protection visa, and the decision of the Court reviving his application to the Tribunal on 28 April 1999, Mr Mohammad moved from 9/18 Evans Avenue to 18/37 Mascot Drive, Eastlakes. Although the Court and the Minister’s solicitor were advised of this change of address, the Tribunal was not. Of course, at that stage, the Tribunal was functus officio, having finalised its review of the matter, sothe only current proceeding was the proceeding in the Court: Re V.G.M. Holdings, Ltd [1941] 3 All ER 417; Mordue v Palmer (1870) 6 Ch App 22; Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 at 311, 317; Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422, and on appeal [2000] FCA 240 at paras 12, 78 and 79. Indeed, although the Tribunal’s letter advising Mr Mohammad of its first decision is not in the appeal papers, its letter (which appears to be a form letter) advising him of its decision upon the remittal states clearly what must have been the position, and presumably was also stated, upon the earlier occasion: “The Tribunal’s file on your case is now closed.”

4                     After the matter was remitted, the Tribunal sent to the respondent a registered letter, dated 23 June 1999, appointing a hearing date, which was addressed to him at 9/18 Evans Avenue, Eastlakes. The letter was returned through the mail, unclaimed, and was marked with the Tribunal’s “received” stamp on 22 July 1999, the day before the date (23 July 1999) fixed for the hearing. As the trial judge put the position: “It is not disputed that Mr Mohammad neither received that letter in fact nor even became aware of its existence until some considerable time after 23 July 1999. Obviously, Mr Mohammad did not act on the invitation given in the letter [to appear to give evidence, and to nominate witnesses he wished called].”

5                     The judgment of the trial judge, which is the subject of this appeal, related to the decision given by the Tribunal following the postage and return of the letter of 23 June 1999. On 25 August 1999, a member of the Tribunal (Mr R A Fordham) affirmed the decision under review not to grant a protection visa. The reasons are very brief. Having referred to the respondent’s claims of significant involvement in university and national politics, leading to attacks on him and his fleeing Bangladesh, the Tribunal expressed some doubts it had entertained, and continued:

“The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention.” (Emphasis added.)

6                     Mr Mohammad having applied to the Court to review this second decision of the Tribunal against him, the point which determined the matter in his favour, in the view of the trial judge, was that the regulation relied upon by the Minister, as deeming him to have received notice of the hearing fixed for 23 July 1999, was invalid. That had been held by the majority in Singh. His Honour expressed a preference for the dissenting judgment in this case, but rightly held himself bound by the decision nevertheless.

7                     In my opinion, there are a number of reasons why the Minister’s appeal must fail. Although they may be expressed quite shortly, it is necessary first to explain the relevant provisions of the Act and the relevant regulations. By sections 425 to 426A (inclusive) and 441A, it is provided:

“425 (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)               Subsection (1) does not apply if:

(a)   the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)   the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 424C(1) or (2) applies to the applicant.

(3)               If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

425A (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 by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.

(3)                The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4)               The notice must contain a statement of the effect of section 426A.

426 (1) In the notice under section 425A, the Tribunal must notify the applicant:

(a)               that he or she is invited to appear before the Tribunal to give evidence; and

(b)              of the effect of subsection (2) of this section.

(2)               The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3)               If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

426A (1) If the applicant:

(a)               is invited under section 425 to appear before the Tribunal; and

(b)               does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2)               This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

441A (1) A document specified in subsection (3) is taken to be duly given to an applicant for review if:

(a)                the document is sent (physically, electronically or otherwise) to:

(i)                   the last address for service provided by the applicant in connection with his or her application for review; or

(ii)                 the last residential address provided by the applicant in connection with his or her application for review; and

(b)                the Tribunal has a receipt or other evidence indicating the date of dispatch.

(2)               A document specified in subsection (3) is taken to be duly given to an applicant for review if the document is given:

(a)                by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or

(b)                by leaving it at the applicant’s place of residence with a person who appears to live there and appears to have turned 16.

(3)               The documents specified for the purposes of subsections (1) and (2) are:

(a)                an invitation to an applicant under section 424 (other than an invitation to an applicant who is in immigration detention); and

(b)                an invitation under section 424A (other than an invitation to an applicant who is in immigration detention); and

(c)                a notice under section 425A (other than a notice to an applicant who is in immigration detention); and

(d)                a notice under section 430A; and

(e)                a statement given under subsection 430B(6).

(4)               It is sufficient compliance with the requirement to give a document referred to in subsection (3) if a facsimile, or a certified copy, of the document is so given.

(5)               A document posted in accordance with paragraph (1)(a) must bear correct prepaid postage and, if the document is posted to an overseas address, the postage must be at the full airmail rate.”

The “prescribed period” referred to in s 425A(3) is prescribed by reg 4.35D, as follows:

“4.35D For subsection 425A(3) of the Act, the prescribed period:

(a)               if the applicant is a detainee – starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 7 days after the day on which the notice is received; or

(b)               in any other case – starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.”

8                     It is in the context of these provisions that the Minister relies on reg 5.03, which provides:

“5.03(1A) This regulation applies to a document sent by the Minister or a Tribunal to a person in that person’s capacity as:

(a)               an applicant, of any kind, under the Act or these regulations; or

(b)               the holder, or the former holder, of a visa; or

(c)               a person who is invited in writing by a Tribunal to give information or comments to the Tribunal.

(1)                For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is either:

(a)               if the document is sent from a place in Australia to an address in Australia - 7 days after the date of the document; or

(b)               if the document is sent from:

(i)                a place outside Australia to an address in Australia; or

(ii)               a place in Australia to an address outside Australia; or

(iii)             a place outside Australia to an address outside Australia;

21 days after the date of the document.

(2) Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document.”

9                     Importantly, the Minister accepted, in argument, that only para (a) of reg 5.03(1A) could have application here, since the respondent could not properly be described, in the language of para (c), simply as “a person … invited … to give information or comments to the Tribunal”. That means that a general provision – referring to “an applicant, of any kind …” – of a mere regulation having general application is said to apply to curtail, in a case such as the present, the specific provisions of the Act ensuring that an applicant to the Refugee Review Tribunal should have the periods of notice provided for in s 425A(3) and (by necessary implication) in s 426(2).

10                  It is plain that Parliament intended to qualify the provision for notice in s 425A by s 441A, but this section does not artificially establish a period of notice contrary to the known truth, and so as to satisfy otherwise the requirements of ss 425, 425A and 426 of the Act: cf Rahman v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 391 at 403. Regulation 5.03, if applicable to the specific provisions I have mentioned, would do so. That fact lies at the heart of the decision in Singh denying its valid application. For my part, I would still prefer to reach the same result by the construction I suggested in Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584 at 589-590. As I have pointed out, reg 5.03(1) is qualified by the words “subject to the Act”, which are apt to exclude its application where the Act makes specific provision with which its operation would be inconsistent. Once it appeared (by the return of the letter through the post) that the respondent had not been given the required period of notice, either in respect of his own appearance or in respect of the nomination of witnesses, a regulation which only applied “subject to the Act” could not enable the Tribunal to proceed. The regulation could not be treated as having a conclusive operation at the moment of the posting of the letter, preventing the Act from operating upon events requiring the application of its terms, as those events unfolded. In Minister for Immigration and Multicultural Affairs v Capitly (1999) 55 ALD 365 at 371 – 372, Wilcox and Hill JJ said:

“The legislative direction that the tribunal give an applicant an opportunity to appear before it to give evidence in circumstances where a decision might be unfavourable to the applicant if dealt with only on the papers is a central feature of a fair system of administrative merits review. ...

It was submitted on behalf of the minister that the tribunal had discharged its obligation to give Mr Capitly the opportunity to give evidence before it by forwarding to him the letter of 8 July advising him of the proposed hearing date and his right to give oral evidence. It was said that s 425(1) is concerned only with the acts of the tribunal and not with anything that might thereafter happen to an applicant. Indeed the submission appeared to go so far as to say that, once an opportunity to appear had been afforded, that was the end of the matter. That submission cannot be accepted.

…In the present context an opportunity to give evidence is not given once and for all by the notification to an applicant of a hearing date in the future. The opportunity must be a continuing opportunity and take account of the circumstances which from time to time exist, up until the opportunity is either availed of or not. For example, if an applicant who had received a letter such as that sent to Mr Capitly on 8 July 1997 had been severely injured in a car accident so that he could not attend a hearing on the day on which it was scheduled, he could hardly have then relevantly been given an opportunity to appear before the tribunal to give evidence. That opportunity is one which must exist throughout the period until review, including the date on which it occurs.”

Their Honours were speaking in the context of a case where, to the knowledge of the Tribunal, illness had prevented an applicant appearing after he had received notice. But the principle they expound, requiring the Tribunal to look beyond the mere giving of notice, applies equally to a case where the notice is returned undelivered. At the time of the hearing, to the knowledge of the Tribunal, the situation is one, in such a case, in which it cannot then be said that any continuing opportunity is being afforded (or, since the amendment of s 425, any continuing invitation to appear is being extended) to the applicant: cf Rahman v Minister for Immigration and Multicultural Affairs.

11                  The facts of the present matter, which bear some resemblance to those of Capitly, raise a further ground of review. In my first instance judgment in that case (Capitly v Minister for Immigration and Multicultural Affairs, unreported, 24 September 1998), I said:

“Here, the tribunal was aware of the applicant’s claim that he was prevented by illness from attending the hearing, but ignored that claim without having, or suggesting that it had, any justification whatever for doing so. It then proceeded to give reasons for denying the application without even mentioning the matter – reasons which misleadingly left it to be understood that the applicant had chosen not to avail himself of an actual opportunity to give evidence, when in reality he had not had any reasonable opportunity to do so.”

The vice in the reasons given for the decision against Mr Mohammad is even more serious. The Tribunal refers to him as having “not availed himself of the opportunity to attend an oral hearing”, and concludes that he “has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him.” In the context, the final decision follows these comments - “A number of relevant questions are therefore left unanswered”, the Tribunal says, and it proceeds to make its finding of lack of satisfaction that Mr Mohammad has a well-founded fear of persecution within the meaning of the applicable Convention. Thus the decision was squarely “based …. on the existence of a particular fact, and that fact did not exist” (s 476(4)(b) of the Act).

12                  The respondent did not have “ample opportunity”, or indeed any opportunity, to provide further information or allow the Tribunal to explore aspects of his claims with him at the oral hearing to which the Tribunal referred, of which he was completely unaware. That leaves for consideration, in respect of the ground stated in s 476(1)(g) of the Act, solely the question whether there was no evidence or other material to justify the Tribunal in basing its decision on the respondent’s alleged ample opportunity. The only evidence before the Tribunal of the opportunity to attend the oral hearing fixed for 23 July 1999, to which it is plain the Tribunal was referring in the passage I have quoted, and to which it had also referred in the first paragraph of its “FINDINGS AND REASONS” commencing with the words “As the applicant has not availed himself of the opportunity to attend an oral hearing …”, was the postage of the letter of 23 June 1999. But the same file of the Tribunal which showed the postage of the letter also showed that it had not been delivered, but had been returned to the Tribunal. In order to defeat an application made in reliance on s 476(1)(g), as elaborated by s 476(4), it is only necessary that the Tribunal should have had some evidence to justify its finding or assuming the fact upon the existence of which it based its decision, although that fact did not exist. But it cannot be said that the file showing the postage of the letter was some evidence of its receipt, when the very same file showed that the letter was returned undelivered. To use the words of Black CJ (with whom Spender and Gummow JJ agreed) in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 222, the evidence before the Tribunal was not “capable of supporting the conclusion”; there was no “material before the decision-maker upon which he could have come to the conclusion”; and the material that was before the Tribunal was “incapable of offering any support for the conclusion”.

13                  The judgment of Black CJ in Curragh Queensland Mining Limited v Daniel also sheds (at 220-221) light on the meaning of the expression “base the decision on the existence of a particular fact”, an expression which has been taken, plainly enough, from s 5(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the provision there examined. Black CJ said:

“If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact.”

His Honour referred to the remarks of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357-358. Black CJ elaborated:

“Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.

If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J in Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374 that there is no reason to read s 5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review.”

These remarks seem to me equally applicable to s 476(4)(b).

14                  Similarly, in Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 at 18, the judgment of the Court (Burchett, Tamberlin and Emmett JJ) found the principle satisfied where it could be said that “[t]he decision … proceeds on the basis” of a particular conclusion as to which the Court said:

“An erroneous premise that the appellant claimed to have come from Gedo is an important consideration bearing on this matter. For this reason it is probable that the factual mistake as to her always having claimed to be a Marehan from Gedo operated in a material way to influence the ultimate determination of the Tribunal that she was not a refugee. The principles set out in Curragh are applicable in the present case.”

See also Charaev v Minister for Immigration and Multicultural Affairs [2000] FCA 865; Guden v Minister for Immigration & Multicultural Affairs (2000) 58 ALD 352.

15                  There is a further difficulty which the Minister’s appeal must overcome. It will be recalled that it was at a time when the Tribunal was functus officio, during the progress of Mr Mohammad’s first application to the Court, that he changed his address, and the Court and the Australian Government Solicitor, acting for the Minister, were notified of his new address. The letter of 23 June 1999, on which the Minister relies, was sent to the old address after the matter had been remitted to the Tribunal, the change of address not being then (or at any other time) notified to it. The Minister relies on s 441A(1)(a)(i) on the basis that the letter was sent to “the last address for service provided by the applicant in connection with his … application for review”. But that contention immediately raises a question of construction. The provision does not say “the last address provided to the Tribunal”, and the fact that it does not is emphasized by the express reference to “the Tribunal” in paragraph (b). The section has to operate in the real world, and in a multiplicity of situations. It is obvious that applicants for protection visas are often in poor financial circumstances and may live in emergency accommodation which may involve quite frequent moves. That an applicant’s address might change after a decision has rendered the Tribunal functus officio, and during the pendency of a court proceeding, is not unlikely, and Parliament must have perceived that. There may well be other reasons, related, for example, to a period of custody, which may lead to an applicant notifying an address to the Department rather than to the Tribunal. Having regard to these obvious considerations, the Parliament’s choice of the broad expression “in connection with his or her application for review”, rather than a narrower expression limiting the last address to that supplied directly to the Tribunal, seems to me to be quite significant.

16                  In Coventry and Solihull Waste Disposal Co Ltd v Russell (Valuation Officer) [1999] 1 WLR 2093 at 2103, Lord Hope of Craighead said of the expression “in connection with” that “the phrase is a protean one which tends to draw its meaning from the words which surround it.” Thus the contextual factors to which I have referred are of particular importance. Similarly, in Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275, Bowen CJ, Morling and Neaves JJ, in their joint judgment, said:

“The meaning of the word ‘connection’ is both wide and imprecise. One of its common meanings is ‘relation between things one of which is bound up with, or involved, in another’ (Shorter Oxford English Dictionary).”

In The Queen v Isaac; Ex parte Transport Workers’ Union of Australia (1985) 159 CLR 323 at 333, Gibbs CJ referred to an eligibility rule embracing “every … worker … engaged in … labour in or in connection with any of the following industries or callings … .” His Honour said:

“The words ‘in connexion with’ in an eligibility rule connote a relationship between the work of the employee and the industry or calling in question.”

Again, in Claremont Petroleum NL v Cummings (1992) 110 ALR 239 at 280, Wilcox J said:

“The phrase ‘in connection with’ is one of wide import.”

His Honour cited a passage from an earlier decision of his own, in which it was stated:

“The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing. The phrase ‘having to do with’ perhaps gives as good a suggestion of the meaning as could be had.”

In Strachan v Marriott [1995] 3 NZLR 272 at 279, Hardie Boys J said of the phrase “in connection with”:

“This too is of wide meaning, connoting a less immediate or direct relationship than, for example, the preposition ‘of’ … . ‘In connection with’ may signify no more than a relationship between one thing and another.”

17                  These authorities confirm me in the view that it is appropriate, in s 441A(1)(a), to read the words “the last address for service provided by the applicant in connection with his or her application for review” as including an address for service provided as an incident of a review proceeding in the Court that was the only means by which the original application could be pursued at a time when it had been finally rejected by the Tribunal. When Mr Mohammad took the Tribunal’s decision on review, the other party to the proceeding was required by s 480 of the Act to be the Minister, not the Tribunal. I conclude that this address was supplied “in connection with” the application, which was the subject of the matter for adjudication.

18                  It follows that the letter of 23 June 1999 was sent to the wrong address, and that s 441A did not operate to deem the notice given by the letter to have been duly given to Mr Mohammad.

19                  For all these reasons, the appeal should be dismissed with costs.

Associate:

Dated: 18 September 2000

REASONS FOR JUDGMENT

BRANSON J

INTRODUCTION

20                  I have had the benefit of reading in draft the reasons for judgment of both Burchett and Marshall JJ. As each of their Honours has set out the background to the appeal I am spared the need to do so.

21                  The respondent (“Mr Mohammad”) was not represented either before Katz J on his application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) or before this Court on appeal. His formal application for judicial review of the decision of the Tribunal shows little sign of having been prepared with the assistance of a legal practitioner. After reciting certain aspects of the history of Mr Mohammad’s claim for a protection visa, the application states:

“… the Tribunal failed to communicate with me at my current address at 18/37 Eastlakes, which I mentioned to the Honourable Federal Court, and refused my application which prevented me from having the opportunity to provide any oral evidence or further documentation in order to establish my fears of persecution upon my return to Bangladesh.

I therefore submit that the actions of the Refugee Review Tribunal in forwarding their communications to my previous address, plus the Tribunal’s refusal of my application, which was made without giving me the opportunity to present my oral and documentary evidence, most certainly involves an error of law, being an error involving an incorrect interpretation of the applicable law, or an incorrect application of the law to the facts, as found by the Case Officer who made the decision.”

22                  The above passage from Mr Mohammad’s application to the Federal Court is capable of being understood as raising three separate, although related, grounds of complaint. First, that he was not properly invited to appear before the Tribunal. Secondly, that he was not given appropriate notice of the day on which, and the time and place at which, he was scheduled to appear before the Tribunal. Thirdly, that the Tribunal reached its decision without taking into account oral and documentary evidence which he wished to present to the Tribunal.

23                  The issues of whether the Tribunal had invited Mr Mohammad to appear before it and given him appropriate notice of the day on which, and the time and place at which, he was scheduled to appear as required by s 425A of the Migration Act 1958 (Cth) (“the Act”) are logically distinct issues from that of the significance, if any, of the Tribunal having made its decision without receiving oral and documentary evidence from Mr Mohammad.

24                  As Katz J took the view that he was compelled by the decision of the majority in Minister for Immigration & Multicultural Affairs v Singh (2000) 171 ALR 53 to conclude that reg 5.03 of the Migration Regulations 1994 (Cth) (“the Regulations”) was invalid, he necessarily concluded that the notice under s 425A of the Act directed by the Tribunal to Mr Mohammad did not give him at least the prescribed period of notice. On that basis his Honour could not do other than set aside the decision of the Tribunal and refer the matter to the Tribunal for further consideration. His Honour thus had no occasion to give consideration to whether the Tribunal ought to have proceeded to make a decision in the circumstances in which it did or to the evidentiary significance, if any, which the Tribunal attached to Mr Mohammad’s failure to give evidence and present arguments before it.

25                  For the reasons given below, I would dismiss the Minister’s appeal from the decision of Katz J. However, I have accepted the contention of the Minister that reg 5.03 has a valid application in respect of a notice under s 425A of the Act. Nonetheless, I have concluded that Mr Mohammad was not given notice of the day on which, and the place and time at which, he was scheduled to appear before the Tribunal.

Invitation to AppeaR and Notice of SCHEDULED APPEARANCE

26                  The Tribunal did not consider that it should decide the review in Mr Mohammad’s favour on the basis of the material before it (see s 425(2)(a)). It thus came under a statutory duty to invite Mr Mohammad “to appear before [it] to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1)).

27                  Section 425A(1) of the Act provides that if an applicant is invited to appear before the Tribunal, the Tribunal must give him or her “notice of the day on which, and the time and place at which, the applicant is scheduled to appear”. As Mr Mohammad was not in immigration detention, the Tribunal was required to give him such notice “by one of the methods specified in section 441A” (s 425A(2)). The period of the notice was required to be “at least the prescribed period or, if no period is prescribed, a reasonable period” (s 425(3)).

28                  As Katz J observed, in this case the Tribunal sought to satisfy its obligations under s 425(1) and s 425A by giving to Mr Mohammad its letter dated 23 June 1999. The letter of 23 June 1999 both extended an invitation to Mr Mohammad to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of his claims and advised him of the date, time and place at which he was scheduled to appear.

29                  No criticism can be made of the decision of the Tribunal to include the invitation to the applicant to appear before it and the notice of the date on which, and the time and place at which, he was scheduled to appear in the one document. Indeed, as the Act does not expressly provide for the method by which an invitation under s 425(1) is to be given to an applicant (although, by contrast, it does provide for the method by which invitations under ss 424 and 424A are to be given to applicants), it would seem that the legislature intended the invitation referred to in s 425(1) to be given by the notice referred to s 425A.

30                  Section 441A of the Act relevantly provides that a notice under s 425A, other than a notice to an applicant who is in immigration detention –

“is taken to be duly given to an applicant for review if:

(a)               the document is sent (physically, electronically or otherwise) to:

(i)                 the last address for service provided by the applicant in connection with his or her application for review; or

(ii)               the last residential address provided by the applicant in connection with his or her application for review; and

(b) the Tribunal has a receipt or other evidence indicating the date of despatch.”

31                  The envelope in which the letter of 23 June 1999 was sent to Mr Mohammad indicates that it was despatched by the Tribunal on 23 June 1999. However, the envelope, and presumably its contents, were returned to the Tribunal as unclaimed post on 22 July 1999 – ie the day before Mr Mohammad was scheduled to appear before the Tribunal. Nonetheless, if the letter of 23 June 1999 was sent to “the last address for service provided by the applicant in connection with his … application for review” within the meaning of s 441A(1)(a)(i), the notice under s 425A is to be “taken to be duly given to [him]” (s 441A(1)). It would, however, remain to be determined whether “the period of notice given [was] at least the prescribed period or, if no period is prescribed, a reasonable period” (s 425A(3)).

32                  A period has been prescribed for the purposes of s 425A(3) of the Act. Regulation 4.35D of the Regulations relevantly provides:

“For subsection 425A(3) of the Act, the prescribed period:

(a)               [not here relevant]; or

(b)               in any other case – starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.”

33                  Section 504(1)(e) of the Act authorises the making of regulations, not inconsistent with the Act:

“making provision for and in relation to:

(i)                 the giving of documents to;

(ii)               the lodging of documents with; or

(iii)             the service of documents on;

the Minister, the Secretary or any other person or body, for the purposes of this Act.”

34                  Section 504(3) and (3A) importantly provide:

“(3) The regulations that may be made under paragraph (1)(e) include, but are not limited to, regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of this Act and the regulations to have been received by the person at a specified or ascertainable time.

(3A) The Evidence Act 1995 does not affect the operation of regulations made for the purposes of paragraph (1)(e).”

35                  Regulation 5.03 of the Regulations relevantly provided:

“5.03(1A) This regulation applies to a document sent by … a Tribunal to a person in that person’s capacity as:

(a)               an applicant, of any kind, under the Act ….

(1)               For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is either:

(a)               if the document is sent from a place in Australia to an address in Australia – 7 days after the date of the document; ….

(2)               Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document.”

36                  It should be noted that reg 5.03(2) now requires a document to be sent within 3 days after the date of the document. However, this change to the regulation was made after the time with which this appeal is concerned.

37                  In Minister for Immigration & Multicultural Affairs v Singh a majority of the Full Court (O’Connor and Mansfield JJ; Tamberlin J dissenting) held that reg 5.03 was invalid in so far as it purported to operate in respect of the time limits prescribed by reg 4.31 for the purposes of s 412 of the Act. Section 412 of the Act provides that an application for review of a “RRT-reviewable decision” must “be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision”. Regulation 4.31 relevantly provides:

“(1) For the purposes of paragraph 412(1)(b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal.

(2) A period mentioned in subregulation (1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of:

(a)               in the case of an application given to the Tribunal by or for an applicant in immigration detention on that day – 7 working days (beginning with the first working day that occurs on or after that day); or

(b)               in any other case – 28 days.”

38                  The Minister submitted that the decision of the majority in Singh is plainly wrong and should not be followed. This case does not call for reconsideration of the validity of reg 5.03 in so far as it purports to operate in respect of the time limits prescribed by reg 4.31 for the purposes of s 412 of the Act. This case is not concerned with those time limits. Moreover, there are considerations which apply in respect of that aspect of the operation of reg 5.03 which do not apply in respect of its operation in the present case. In particular, as O’Connor and Mansfield JJ observed in Singh, reg 5.03 can operate, if a document notifying an applicant of a RRT-reviewable decision is posted on the day that it is dated, to extend the period within which an application for review may be given to the Tribunal beyond the period of 28 days after the applicant in fact received notification of the decision. Section 412(1)(b) provides that the period prescribed must be “a period ending not later than 28 days after the notification of the decision”. As the legislature clearly intended by s 412(1)(b) to set the outer limit of the period within which an application for review of an RRT-reviewable decision may be made, it may, in my view, be doubted that it intended by s 504 of the Act to authorise the making of a regulation which could operate in a way which extends that period.

39                  Moreover, O’Connor and Mansfield JJ placed weight in Singh on the way in which reg 5.03, if valid, would impact on the rights of a person in immigration detention. The Minister has contended in this case that reg 5.03 has no application in respect of a person in immigration detention. It is not necessary in this case to determine this broad question. It is clear, in my view, that reg 5.03 does not have any application in respect of an applicant in immigration detention so far as a notice under s 425A of the Act is concerned. Section 425A(1) provides that the Tribunal must give the applicant notice of the day on which, and the time and place at which, he or she is scheduled to appear – but it is only in respect of an applicant who is not in immigration detention that s 425A(2) requires the utilisation of a method of giving notice specified in s 441A. As to a notice under s 425A directed to an applicant who is in immigration detention, even if it were to be given by a method specified in s 441A, it would not be taken to be “duly given” to such an applicant within the meaning of s 441A(1) merely because it was sent to an address specified in s 441A(1) (see s 441A(3)(c)). For this reason, I conclude that it would not be consistent with the evident intention of the legislature, as disclosed by s 441A(3)(c) of the Act, for reg 5.03 to have any application in respect of a notice under s 425A(1) directed to a person in immigration detention. As reg 5.03(1) has application “subject to the Act”, I conclude as a matter of construction that the regulation has no application in respect of a s 425A(1) notice directed to an applicant who is in immigration detention.

40                  This case does, however, call for consideration of the validity of reg 5.03 in so far as it purports to operate in respect of a notice under s 425A(1) directed to a person who is not in immigration detention. This consideration calls for an analysis of the amendments made to Division 4 of Part 7 of the Act by the Migration Legislation Amendment Act (No 1) 1998 (“the Amendment Act”). These amendments relevantly came into operation on 1 June 1999 and applied to Mr Mohammad’s application for review (Sub item 20(1) of Schedule 3 to the Amending Act).

41                  In Sook v Minister for Immigration & Multicultural Affairs (1999) 86 FCR 584 Burchett J (Moore and Katz JJ expressed no view on this issue) held that s 426(1)(b) of the Act, as then in force, which required the Tribunal to notify the applicant that he or she is entitled to appear before the Tribunal to give evidence, called for actual notification to be given to the applicant. His Honour therefore took the view that reg 5.03 was irrelevant to the determination of the time, if any, at which an applicant was notified by the Tribunal that he or she was entitled to appear before it. His Honour observed at para 9 that reg 5.03 was concerned with when a document is taken to be received, not with the manner in which a notification is received.

42                  In Rahman v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 391 Sackville J, also giving consideration to the provisions of the Act as in force at a time earlier than 1 June 1999, concluded that the authorities made it clear that s 425(1)(a) of the Act required the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it. Sackville J did not consider it necessary in the circumstances of that case for him to resolve the issue of the proper construction of s 426(1) of the Act. He expressed no view as to the correctness of the construction placed on the section by Burchett J in Sook. His Honour, after referring to a number of earlier decisions, including the decision of the Full Court of this Court in Minister for Immigration & Multicultural Affairs v Capitly (1999) 55 ALD 365, concluded that the applicant in that case was not given a reasonable opportunity by the Tribunal to appear to give evidence. At para 46 his Honour said:

“It is implicit in what I have said that, even if a document is deemed to have been received by an applicant by reason of the operation of regs 4.39 and 4.41, the deemed receipt does not determine whether the applicant has received the genuine opportunity to appear before the RRT required by s 425(1)(a). As Hely J observed in Uddin [(1999) 165 ALR 243] at 250:

‘[e]ven 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.’

This analysis is consistent with the decision in Capitly, where timely service of a notice did not preclude a holding that s 425(1)(a) had not been complied with.”

43                  Following the coming into operation of the amendments to Division 4 of Part 7 of the Act effected by the Amending Act, s 425 of the Act no longer provides that the Tribunal “must give the applicant an opportunity to appear before it to give evidence.” Instead s 425 provides that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments ….” This change from the substantive requirement of giving the applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the applicant to appear before the Tribunal suggests an intention in the legislature to remove the statutory requirement, which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement. A further indication that this was the intention of the legislature is provided by the terms of s 425A, which was inserted into the Act by the Amending Act. Section 425A has the effect that, if the applicant is not in immigration detention, the Tribunal must give the applicant notice of his or her opportunity to appear before the Tribunal by sending a notice to the applicant, by giving a notice to the applicant or a person authorised by the applicant to receive on his or her behalf a document of that kind, or by leaving a notice at the applicant’s place of residence with a person who appears to live there and appears to have turned 16. That is, the amendments effected by the Amending Act changed the requirement that the Tribunal notify the applicant that he or she is entitled to appear before the Tribunal to a requirement that the Tribunal give the applicant, by a specified method, a notice in writing containing certain information.

44                  As the Act is currently framed, it is less easy to conclude, as Burchett J did in Sook, that reg 5.03 properly construed has no application in respect of a document by which the Tribunal advises an applicant that he or she may appear before it to give evidence. Section 425A in reality requires the Tribunal to give the applicant notice of his or her opportunity to appear before it by giving him or her a document which contain certain information. The Tribunal must give that document to the applicant by one of the means specified in s 441A(1) and (2). Provided that the Tribunal does this, the document is taken to be duly given to the applicant (s 441A). That is, the obligation imposed on the Tribunal by s 425A(1) is met.

45                  Section 504(1)(e) authorises the making of “regulations providing that a document given to … a person in a specified way shall be taken for all purposes of this Act … to have been received by the person at a specified or ascertainable time” (s 504(3)). Regulation 5.03 is, in my view, a regulation of the kind authorised by s 504(1)(e) of the Act. Regulation 5.03 by its terms applies to a document sent by the Tribunal to a person in that person’s capacity as an applicant of any kind under the Act (reg 5.03(1A)). A notice under s 425A is, I consider, a document sent by the Tribunal to a person in that person’s capacity as an applicant under the Act. In my view, reg 5.03 properly construed operates to fix the time at which a notice under s 425A sent to an applicant who is not a detainee is to be taken to be received.

46                  However, it is necessary that the period of notice given to the applicant be at least the prescribed period (s 425A(3)). The prescribed period is fixed by reg 4.35D of the Regulations. For an applicant who is not a detainee “the prescribed period ... starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received” (reg 4.35D(b)). That is, the prescribed period is fixed by reference to the time at which the notice under s 425A is received by the applicant. Where the Tribunal has a receipt or other evidence indicating the date of dispatch, a notice under s 425A is taken to be duly given to the applicant if it is sent to one of the addresses specified in s 441A(1)(a). Regulation 5.03 fixes the time at which the notice is to be taken to be received.

47                  I therefore turn to consider whether reg 5.03 is invalid in so far as it purports to operate in respect of the time limit prescribed by reg 4.35D for the purpose of s 425A(3) of the Act. Alternatively, the question might be asked whether reg 4.35D is invalid on the ground of unreasonableness having regard to the operation of reg 5.03. It may be noticed at once that, unlike s 412, s 425A(3) does not place a limit on the period that may be prescribed. Section 425A(3) provides that the period of notice given must be at least the prescribed period, making it plain that a period of notice greater than that prescribed may be given. That is, the period prescribed for the purpose of s 425A(3) is a minimum period of notice. This may be contrasted with the period to be prescribed for the purposes of s 412 which is a maximum period allowed for the taking of a particular step.

48                  In authorising the setting of a minimum period of notice for the purposes of s 425A, Parliament is not to be understood as authorising the fixing of a plainly unreasonable period. As Lockhart J said in Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 384:

“Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws.”

49                  Is there any reason to think that a period of notice to an applicant with a relevant address in Australia concerning a scheduled hearing before the Tribunal which, assuming the document giving the notice is sent on the seventh day after the date of the document, could be as short as eight to ten days (allowing four to six days for postal delivery – cf the ordinary presumption of four days under s 160 of the Evidence Act 1995 (Cth)) is manifestly unreasonable? I see no reason to conclude that it is. While most applicants will wish to prepare themselves for the scheduled hearing, they will earlier have sought review by the Tribunal of the relevant RRT-reviewable decision. They may be presumed to be aware of the resulting likelihood that they will need to support their review application at a hearing before the Tribunal. It cannot be suggested, in my view, that it is manifestly unreasonable to expect individuals whose right to remain in this country is under challenge to be able to organise their affairs so as to be able to attend before the Tribunal to support their review application on approximately a week’s notice. Moreover, it is to be remembered that the legislature has directed that the Tribunal in carrying out its functions under the Act is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420). While the various elements of this objective tend to conflict one with the other, they suggest against a legislative intention that a long period of notice is to be given to an applicant of a scheduled hearing before the Tribunal. They also suggest that the Tribunal should fairly readily exercise its power to reschedule an applicant’s appearance before it (s 426A(2)) should it become apparent that unfairness may result from a failure to do so. As Gaudron and Kirby JJ observed in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at para 64, although s 476(2) of the Act forbids this Court from reviewing a decision of the Tribunal on the ground that a breach of the rules of natural justice occurred in connection with the making of the decision, the section does not limit the jurisdiction conferred on the High Court by the Constitution.

50                  For completeness, I add that I do not regard the terms of s 426 of the Act to be of relevance in this regard. Even if it is assumed that the right given to an applicant by s 426(2) of the Act is a right, exercisable within seven days of the date on which he or she is taken to have received the notice under s 425A of the Act, to give a written notice to the Tribunal that the applicant wants the Tribunal to obtain oral evidence from a person, nothing in the language of the section compels a conclusion that the oral evidence of that person is to be taken, if at all, at or about the time when the applicant is scheduled to appear. The Tribunal is free to obtain oral evidence from that person at any reasonable time.

51                  I conclude that reg 5.03 validly operates to fix the time at which a notice given under s 425A of the Act to an applicant who is not in detention is to be taken to have been received by the applicant. I further conclude that neither reg 4.35D nor reg 5.03 is invalid in so far as it operates to set the prescribed period for the purposes of s 425A of the Act.

Section 441A

52                  Section 441A, the relevant provisions of which are set out in para 11 above, was inserted into the Act by the Amending Act. The terms of s 441A closely reflect those of reg 4.40 of the Regulations. Regulation 4.40 appears in Division 4.3 of the Regulations which is concerned with the service of documents by the Tribunal and the Migration Review Tribunal. Relevantly, Division 4.3 of the Regulations provides:

“4.39 (1) In this regulation:

“lodge an address for service” in relation to an applicant for review, means give the Tribunal notice in writing of an address at which documents relating to a review may be sent to the applicant.

(2) An applicant for review may:

(a)               lodge an address for service in a review; and

(b)               at any time after lodging an address for service, lodge a new address for service in that review.

(3) If an applicant for review lodges with the Tribunal a new address for service under paragraph (2)(b):

(a)               that new address becomes the applicant for review’s address for service in the review; and

(b)               he or she must, immediately after doing so, serve on the Minister a notice of that new address for service.

(4) An address for service may be, but need not be, the applicant’s residential address.

4.40 (1) A notice or statement to be given to an applicant in relation to a decision of the Tribunal is to be taken to be duly given if the notice or statement is given:

(a)               by posting it to the last address for service provided by the applicant in connection with his or her application for review; or

(b)               by posting it to the residential address provided by the applicant in his or her application for review; or

(c)                by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or

(d)               by leaving it at the place of residence of the applicant with a person who appears to live there and appears to have turned 16.

(2) It is sufficient compliance with the requirement to give a notice or statement under subregulation (1) if a facsimile or certified copy of the notice or statement is so given.

(3) A document posted in accordance with paragraph (1)(a) or (b) must bear correct pre-paid postage and, if the document is posted to an overseas address, the postage must be at the full airmail rate.

4.41 (1) If:

(a)               a document is to be given to, or served on, a person for the purposes of a review by the Tribunal; and

(b)               no other provision as to the manner of giving or serving the document is made by the Act or these Regulations;

the document may be given or served:

(c)                if the person has lodged an address for service under regulation 4.39, by posting it to, or leaving it at, that address; or

(d)               if the person has not lodged an address for service:

(i)                 by giving it to the person personally or to a person duly authorised to receive documents on behalf of the first-mentioned person; or

(ii)               by posting it to the person at his or her last-known place of residence; or

(iii)             by leaving it at that place of residence of the person with another person who apparently lives there and has apparently turned 16.”

53                  In the context provided by Division 4.3 of the Regulations, there is good reason to think that the expression “the last address for service provided by the applicant in connection with his or her application for review” in reg 4.40(1)(a) is intended to refer to the address for service lodged by an applicant under reg 4.39. However, the same expression when used in s 441A(1)(a) is to be understood in its context in Part 7 of the Act. In that context, there is no good reason to interpret the expression as though it referred to “the last address for service provided by the applicant to the Tribunal in connection with his or her application for review”. Indeed, as Burchett J has explained, in the context of Part 7 of the Act there are reasons to think it unlikely that Parliament intended the expression to be narrowly construed. For the reasons given by his Honour, I also conclude that the letter of 23 June 1999 was not sent to the “last residential address provided by the applicant in connection with his … application” within the meaning of s 441A(1)(a)(ii) of the Act.

54                  The above conclusion compels a finding that the Tribunal did not give Mr Mohammad notice of the day on which, and the time and place at which, he was scheduled to appear as required by s 425A of the Act. For this reason the Minister’s appeal must be dismissed. I consider it appropriate, however, to give brief consideration to the evidentiary significance, if any, which the Tribunal placed on Mr Mohammad’s failure to give evidence before it.

EVIDENTIARY SIGNIFICANCE OF FAILURE TO GIVE EVIDENCE

55                  It accords both with common sense and legal principle that an unexplained failure by a party to give evidence, to call a witness or to tender documentary evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party’s case (Cross on Evidence, Australian Edition, Butterworths para 1215). Whether the inference does arise in a particular case will depend upon whether, in the circumstances, it is to be inferred that the reason why the party did not give evidence, or call the witness or tender the documentary evidence was because the party feared to do so (Smith v Samuels (1976) 12 SASR 573 (FC)).

56                  Plainly, if the reason why a party fails to give evidence is that he or she was not notified of the occasion on which it would have been appropriate for him or her to do so, no inference adverse to the party can be drawn from the failure to give evidence. This will be the case whether or not a statute provides that the party is to be taken to have received notification of the occasion.

57                  If the Tribunal in this case drew an inference adverse to Mr Mohammad by reason of his failure to give evidence before it, it would have treated him unfairly. Mr Mohammad was not in fact given an opportunity to give evidence before the Tribunal because he received no notification of the scheduled hearing. If the adverse inference formed an essential link in the Tribunal’s chain of reasoning, the decision of the Tribunal would be open to review on the basis that “there was no evidence or other material to justify the making of the decision” (ss 476(1)(g) and (4)(b) of the Act).

58                  However, I do not consider that it is clear that the Tribunal did draw an inference adverse to Mr Mohammad because he failed to attend the scheduled hearing.

59                  The written reasons of the Tribunal include a section headed “Findings and Reasons”. Immediately under this heading the Tribunal observes:

“As the applicant has not availed himself of the opportunity to attend an oral hearing, the Tribunal has before it only the information contained in the written material from which to make a determination.”

60                  The use of the expression “the opportunity to attend an oral hearing” in the above sentence is infelicitous but the conclusion contained in the sentence does not suggest that an adverse inference is to be drawn from Mr Mohammad’s failure to attend the scheduled hearing.

61                  The reasons of the Tribunal go on to note, in effect, that it is for an applicant to satisfy the Tribunal of the matters necessary to establish an entitlement to a protection visa but that Mr Mohammad had from the time when he lodged his application for a protection visa “failed to provide any details of his claims to the department or to the Tribunal”. The Tribunal observes that:

“In the case of the Tribunal the Applicant had been put on notice, through the delegate’s decision that his failure to make claims was the basis for his decision to refuse to grant a protection visa. Despite this no submission or statement of claims arrived in the period of a year to the date of the Tribunal hearing of 3 November 1998.”

62                  The Tribunal, in its written reasons, then outlines elements of Mr Mohammad’s claims of which it could not be satisfied without further details from Mr Mohammad. It notes that at the earlier hearing before a differently constituted Tribunal it had been put to Mr Mohammad that it would be reasonable to expect that he could produce documentation which supported his claim and that Mr Mohammad had sought time to provide such documentation. The Tribunal expresses the opinion that:

“[T]he Applicant has effectively been on notice since the date of the Tribunal’s decision in November 1998 that the lack of documentation places his claims to have held a senior posting in the [BNP].”

63                  As to Mr Mohammad’s failure to attend at the scheduled hearing, the Tribunal says:

“Had the applicant appeared before me or had he responded I would have put my reservations in this regard to him. However, I have not had that opportunity and therefore cannot be satisfied of his claimed status in the BNP.”

64                  This statement does not suggest the drawing of an adverse inference by reason of Mr Mohammad’s failure to attend the scheduled hearing. It merely records a conclusion based on a view as to the sufficiency of the evidence and other material that was before the Tribunal.

65                  The Tribunal’s reasons go on to state as follows:

“The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention.”

66                  It would have been desirable for the written reasons of the Tribunal to have made more clear what the Tribunal meant when it referred to the applicant’s having been put on notice by the Tribunal that it was unable to make a favourable decision on the information before it and also when it referred to his having had “ample opportunity to do so”. However, it seems to me to be a real possibility, in view of the earlier observations of the Tribunal, that the Tribunal was referring to Mr Mohammad’s earlier attendance before the differently constituted Tribunal, to his having been “put on notice through the delegate’s decision that his failure to make claims was the basis of his decision to refuse to grant a protection visa”, and to his effectively having been on notice since the date of the Tribunal’s decision in November 1998 that he should remedy the deficiencies in the documentation provided by him to the Tribunal.

67                  It is to be noted that on each occasion that the Tribunal explicitly refers in its written reasons to Mr Mohammad’s failure to attend the scheduled hearing it does so in measured terms which suggest against its having drawn an adverse inference from the failure.

68                  As the appeal must be dismissed for another reason, I prefer not to express a concluded view as to whether the Tribunal wrongly attached evidentiary significance to Mr Mohammad’s failure to attend the schedule hearing. However, since the process of reasoning actually adopted by the Tribunal is not made entirely clear by its written reasons, I consider it appropriate to state what I consider the appropriate process to have been. Even though the Tribunal had earlier taken the view that the material before it was not such that it should decide the review in Mr Mohammad’s favour on the basis of that material alone, the failure of Mr Mohammad to attend the scheduled hearing did not compel a finding that the decision of the delegate should be affirmed. The Tribunal, before reaching a decision on the review, was required to reconsider all of the material before it, including any material capable of throwing light on Mr Mohammad’s failure to attend before it, for the purpose of determining first, whether a hearing for Mr Mohammad should be rescheduled and secondly, if no further hearing were to be scheduled, whether on all of the material, including any material that threw light on the reason for Mr Mohammad’s failure to attend before it, it was satisfied that Mr Mohammad is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

CONCLUSION

69                  In my view the appeal should be dismissed with costs.

Associate:

Dated: 18 September 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OFAUSTRALIA

REASONS FOR JUDGMENT

MARSHALL J:

70                  This is an appeal by the Minister for Immigration and Multicultural Affairs (“the Minister”) from the judgment of a single Judge of the Court (“the primary Judge”) given on 12 April 2000. The primary Judge ordered, inter alia, that a decision of the Refugee Review Tribunal (“the RRT”) be set aside. That decision was adverse to the respondent, Elias Kanchan Mohammad.

Factual background

71                  Mr Mohammad is a citizen of Bangladesh. He entered Australia in February 1997 and applied to the Minister for a protection visa in March 1997. On 8 April 1997, a delegate of the Minister refused the application. On 1 May 1997, Mr Mohammad applied to the RRT for a review of the delegate’s decision.

72                  In his application Mr Mohammad provided as his address for service and home address an address in Eastlakes, New South Wales.

73                  On 3 November 1998, the RRT affirmed the decision of the delegate. Mr Mohammad sought review by the Court of that decision. While his application for review in the Court was pending, Mr Mohammad changed his address to another location in Eastlakes. Each of the Court and the Minister’s solicitor was aware of the change of address. However, Mr Mohammad did not inform the RRT of his change of address.

74                  On 28 April 1999, the Court set aside the decision of the RRT of 3 November 1998 and remitted the matter to the RRT for a further hearing.

75                  On 23 June 1999, the RRT sent a letter by registered post to Mr Mohammad’s former address. The letter invited Mr Mohammad to appear before the RRT at the further hearing of his application for a protection visa. The further hearing was scheduled for 23 July 1999. That proposed hearing did not take place because Mr Mohammad did not receive his invitation to attend the hearing.

76                  On 25 August 1999, the RRT affirmed the delegate’s decision of 8 April 1997.

Legislative context

77                  Sections 425, 425A and 441A of the Migration Act 1958 (Cth) (“the Act”) apply to the instant circumstances notwithstanding that their current form post-dated the application to the RRT. See sub-item 20 of Sch 3 to the Migration Legislation Amendment Act (No 1) 1998 (Cth).

78                  Section 425 of the Act obliges the RRT, in a case such as this, to invite an applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.

79                  Section 425A(1) of the Act compels the RRT to “give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear”. If an applicant is not in migration detention, the notice must be given “by one of the methods specified in section 441A”: see s425A(2) of the Act. Section 425A(3) of the Act provides that “(t)he period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period”.

80                  The prescribed period for the purposes of s425A(3) of the Act commences on receipt of the notice of invitation to appear before the RRT and concludes at the end of 14 days after the day on which the notice is received: see reg 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”).

81                  Regulation 5.03 of the Regulations provides, so far as is material, that:

“(1A) This regulation applies to a document sent by … a Tribunal to a person in that person’s capacity as:

(a)   an applicant, of any kind, under the Act… .

(1)   For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is … .

(a)   if the document is sent from a place in Australia to an address in Australia – 7 days after the date of the document… .

(2)   Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document.”

Is Regulation 5.03 valid?

82                  In Minister for Immigration and Multicultural Affairs v Singh (2000) 171 ALR 53, [2000] FCA 377, a majority of a Full Court (O’Connor and Mansfield JJ) held that reg 5.03 was invalid. The primary Judge was bound by the judgment of the majority in Singh. However, his Honour said that he preferred the minority view of Tamberlin J who dissented.

83                  Singh was also a case where an applicant for a protection visa had not communicated a change of his address. In that case, the change of address had not been communicated to the Minister. Consequently, an adverse decision of the Minister’s delegate was not communicated to Mr Singh until after the expiry of the time to apply for a review of the decision before the RRT. Receipt of the advice of the decision was deemed by the RRT in accordance with reg 5.03 of the Regulations.

84                  At [41] of their reasons for judgment, the majority in Singh said that:

“The prescription of time limits under s 412(1) of the Act within which to apply for review of a decision of the minister refusing a visa application must accord with the purposes of the Act. In particular, it must provide an unsuccessful visa applicant with a meaningful opportunity to exercise the right of review granted by ss 411 and 414 of the Act. It may be assumed that the time limits prescribed by reg 4.31 do accord with those purposes. No submission to the contrary was put. It is, however, noteworthy that the time limits so prescribed, and which the minister contends operate in conjunction with reg 5.03 to deem notification of the decision at a certain time, are absolute. There is no provision enabling any person, whether the minister, the tribunal or the court, to vary or extend those time limits, even in cases where clearly no notification of the decision was received without any fault on the part of the visa applicant.”

85                  Further, at [43] the following was said:

“To provide a meaningful opportunity to apply for review of such a decision of the minister or his delegate, the time so prescribed under s 412(1) must be adequate to enable an unsuccessful visa applicant to be notified of the decision, to have an opportunity to consider the reasons for the decision to which, generally speaking, that person is entitled under s 66(2)(c), to determine whether to seek review of the decision, to prepare or have prepared the application for review and to give that application for review to the tribunal, in accordance with s 412(1) of the Act. The visa applicant will not have instituted the application for review by giving it to the tribunal until it is actually received by the tribunal: reg 4.31(1). The application for review may be served upon the tribunal by post, but is not taken to have been instituted until it is in fact received by the tribunal. The time limits prescribed under s 412 must therefore be sufficient to accommodate that process. If they do not, they will not be consistent with the Act. They will not permit the right of review for which the Act provides.”

86                  The majority in Singh then gave examples of how reg 5.03 could work oppressively. Counsel for the Minister in the instant appeal criticised two illustrations of oppression provided by the majority. First, counsel referred to the fact that the majority was influenced in coming to its view about the validity of reg 5.03 by holding that the regulation could apply to persons in immigration detention when (so counsel said) it plainly could not so apply. Second, counsel took issue with a calculation made by the majority at [49] of their reasons in which the possibility that a 28 day notice period may be truncated by 11 days by the operation of reg 5.03 was referred to. It was contended by counsel that the relevant reduction was 4 days not 11 days.

87                  Assuming each of the criticisms of the majority decision to be valid, the principle expressed at [41] and [43] of the reasons concerning the necessity for there to be a meaningful right of review remains a valid one. Clearly, a meaningful opportunity is not provided for a review of “an RRT renewable decision” when the RRT sends a notice to an address which is incorrect and known by the Minister’s legal representatives to be incorrect.

88                  In his dissenting judgment in Singh at [53], Tamberlin J said that he saw “some force in the considerations discussed” in the majority judgment. However, he did not agree that reg 5.03 was invalid.

89                  Counsel for the Minister submitted that the majority judgment in Singh was plainly wrong and ought not be followed. He contended that this Full Court should be less reluctant to depart from the majority view in Singh as that Full Court did not have the benefit of a judgment of a single Judge which dealt with the issue currently under consideration. No authority was offered to support that proposition. I see no reason why the absence of consideration of that point by the primary Judge in Singh makes any difference. The strength of the authority of a Full Court judgment is not diluted on account of an issue which it determines not having been determined at first instance.

90                  Apart from the alleged errors identified in the examples of oppressive operation of reg 5.03 identified by the majority in Singh, it is further submitted that error occurred on account of the application of “a subjective test of reasonableness” in considering the validity of the regulation. I disagree. The intention of the relevant provision in Singh (s412) was to permit an opportunity for an applicant to apply for a review of a delegate’s decision. Regulation 5.03, insofar as it denies such an opportunity, is repugnant to the Act and consequently invalid. In the alternative, it has not been established that the majority view in Singh to that effect is “clearly erroneous”. See Transurban City Link Ltd v Allan (1999) 95 FCR 553, [1999] FCA 1723 at [29] per Black CJ, Hill, Sundberg, Marshall and Kenny JJ.

91                  The validity of reg 5.03 is a question “on which minds might differ” (See Allan at [29]). This was acknowledged by Tamberlin J in Singh as referred to above. The majority view in Singh should not be departed from lightly. It is “a recent, and reasoned, decision” of a majority of a Full Court. See Australasian Meat Industry Employees Union v Hamberger [2000] FCA 1197 at [42] per Beaumont, Lee and Gyles JJ. As was said in Allan at [27], the power to depart from a judgment of a previous Full Court “should be exercised with great care”.

92                  I am not convinced that the majority judgment in Singh is clearly erroneous. As the primary Judge acknowledged, if Singh is followed, Mr Mohammad’s application for review in the Court must succeed.

93                  Accordingly, I would dismiss the appeal with costs.

Associate:

Dated: 18 September 2000