FEDERAL COURT OF AUSTRALIA

SZBPF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1532

SZBPF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 1296/2005

GRAHAM J

18 OCTOBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The Appellant pay the First Respondent’s costs fixed in the sum of $4,000.00.

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

REASONS FOR JUDGMENT

1                     The appellant is a Fijian citizen of Indian ethnicity.  He was born on 31 December 1957.  He travelled to Australia on 12 May 2002 on a Fiji passport.

2                     On 30 May 2002 he applied for a Protection (Class XA) visa.  His application was refused on the ground that he did not satisfy the criterion of being a non citizen in Australia to whom Australia had protection obligations under the United Nations Refugees Convention as amended by the Refugees Protocol.

3                     By an application for review dated 7 January 2003 the Appellant sought a review of the Minister's Delegate's decision.  That application identified the Appellant by recording his family name and given names and indicated his "home address" and his "mailing address". In addition, the application included a nomination of an authorised recipient. Section C of the form contained a heading in bold:

“Where do you want us to send correspondence about your application?”

4                     The form then continued:

“You can nominate someone to receive correspondence and to act on your behalf.  This person is known as your Authorised Recipient.  If you nominate an Authorised Recipient, all correspondence about your application will be sent to this person.

If you do not - nominate an Authorised Recipient we will send all correspondence about your application to you.”

5                     The form was completed so as to identify Christopher Muthu of Ozi-Land Immigration Consultants as the Appellant's Authorised Recipient.  Section 441G of the Migration Act 1958 (Cth) (“The Act”) provides:

“If:

(a)       a person (the applicant) applies for review of an RRT-Reviewable decision; and

(b)       the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;

the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.”

6                     By letter dated 8 January 2003 the Appellant's application for review was acknowledged by the Refugee Review Tribunal (“the RRT”) with a copy of the relevant acknowledgment being sent to the Appellant's authorised recipient.  By letter dated 7 August 2003 the Tribunal informed the appellant that it proposed to conduct a hearing on Friday 12 September 2003 to which the Appellant was invited. A copy of that letter was also sent to the Appellant's authorised recipient.

7                     On 29 August 2003 the Appellant completed a "Response to Hearing Invitation", indicating that he did not want to come to a hearing of his matter before the RRT.  In that document he completed a section concerning his authorised recipient in terms which were marginally different from those indicated in his original application for review.

8                     The name of his authorised recipient was identified as Muthuraman S S Ramasamy of Ozi-Land Immigration Consultants Pty Ltd.  In each instance Ozi-Land Immigration Consultants was identified as having the address 20 Station Street, Marrickville.  Notably, the response to hearing invitation did not when referring to Mr Ramasamy, indicate that he was being appointed as the authorised recipient to do things on behalf of the Applicant that consisted of or included receiving documents in connection with the review.

9                     By letter dated 3 September 2003 the RRT notified the Appellant with a copy to Mr Christopher Muthu of Ozi-Land Immigration Pty Limited that the RRT had considered the material referable to his case and made its decision which would be handed down on 25 September 2003.  On that date the RRT wrote to the Appellant with a copy to Christopher Muthu of Ozi-land Immigration P/L advising him that he was not entitled to a protection visa and enclosing a copy of its decision and reasons. 

10                  Section 430A of the Act requires the RRT to invite a person in the position of the Appellant to be present when the decision is to be handed down.  The Appellant was notified of the time and place when the decision of the RRT would be handed down and a copy of the notification was, as indicated above, sent to his authorised recipient.

11                  The sole question for consideration on the hearing of this appeal is whether or not, by sending notice of the handing down of the decision to the Appellant, with a copy to Mr Christopher Muthu, the provisions of section 430A of the Act had been complied with in circumstances where s441G(1) required the RRT to give notice to the authorised recipient instead of the Applicant.  In my opinion, the only authorised recipient within the meaning of section 441G(1)(b) of the Act ever notified by the Appellant to the Tribunal was Mr Christopher Muthu.  Thus the requirements of section 430A, when taken with section 441G, were strictly complied with.

12                  Having reached that conclusion, it is probably unnecessary to say anything further about this appeal.  It may well be correct to say that the authorised recipient in the Appellant's case was in fact Ozi-land Immigration Consultants of 20 Station Street, Marrickville, rather than a particular officer who worked for that organisation however, it is unnecessary for me to decide that issue.  In SZAMO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 943, Hely J observed that a failure to comply with s430(1) of the Act would not amount to a jurisdictional error on the part of the RRT in making its decision.

13                  I would respectively agree with his Honour's observation in this regard.  The First Respondent has argued that a failure to notify a decision would not vitiate the decision in any event and this proposition seems to me to be correct.  The main purpose of s430A in respect of notification of intended decisions would appear to be to ensure that persons in the position of the Appellant would know the date from which their rights to seek further relief under s477 of the Act would run. 

14                  When asked by me what he wanted to say in support of his notice of appeal, the Appellant said that he was not given an opportunity to appear before the RRT.  This is totally inconsistent with his acknowledged receipt of the letter from the Tribunal inviting him to attend a hearing.  He further said he was not aware what he was doing when he failed to attend the hearing, that his failure to attend was his biggest mistake, and that he would welcome another chance to appear before the Tribunal.

15                  Regrettably, the Appellant has been unable to advance any matter demonstrating error on the part of the RRT or any error in the reasoning of the learned Federal Magistrate who rejected his arguments that the RRT had committed jurisdictional error by failing to give notice of the intended decision to Mr Ramasamy at Ozi-land Immigration Consultants.

16                  In my opinion there was due compliance by the RRT with the provisions of s430A.  In any event, non-compliance would not constitute jurisdictional error in the circumstances. 

17                  Accordingly the appeal should be dismissed with costs.

Associate:

Dated:              18 October 2005

The Applicant appeared in person