FEDERAL COURT OF AUSTRALIA

SZGRH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1408

MIGRATION – application for review not signed by applicant – applicant authorised migration agent to submit all matters on her behalf – agent’s authority extended to signing application form and receiving correspondence from the Tribunal – no application to the Tribunal if application defective – no jurisdictional error if application effective

Migration Act 1958 (Cth) ss 412(1)(a), 441G

NBBD v Minister for Immigration and Multicultural Affairs [2006] FCA 1029 cited

SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 cited

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

NSD 506 OF 2006

BENNETT J

1 November 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The Refugee Review Tribunal is joined as a second respondent.

2.                  The application for an extension of time in which to file a notice of appeal is dismissed.

3.                  The applicant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant applies for an extension of time in which to file and serve a notice of appeal from a judgment of Federal Magistrate Smith (SZGRH v Minister for Immigration & Multicultural Affairs [2006] FMCA 138). The applicant is a national of Mongolia who speaks little or no English. She appeared in person assisted by an interpreter.

Explanation for the delay

2                     The application was filed approximately 3 weeks outside the 21 day time limit prescribed by the Federal Court Rules (O 52 r 15(1)(a)(i)). No explanation for the delay is given, other than an assertion by the applicant that she believed that the time limit had not expired. That explanation does not constitute special reasons for the grant of an extension of time. Nevertheless, it is appropriate to consider the merits of the appeal in determining whether leave should be granted (NBBD v Minister for Immigration and Multicultural Affairs [2006] FCA 1029 at [12]).

Decision of the Federal Magistrate

3                     Federal Magistrate Smith set out the history of this matter in his decision at [4] to [14]. In summary, the applicant lodged an application for a protection visa. That application was refused by a delegate of the Minister and the applicant sought review of the Minister’s decision before the Refugee Review Tribunal. The application form to the Tribunal included an authority for a migration agent (Mr Mollah) to act for the applicant in relation to her application. The form indicated that correspondence was to be sent to the applicant’s residential address and that her agent was authorised to receive correspondence in connection with the review by the Tribunal. The form explained that, if such a person was nominated, all correspondence would be sent to that person, identified by the form as the “authorised recipient”.

4                     Letters addressed to the applicant were sent to Mr Mollah regarding the Tribunal proceeding. One such letter informed the applicant that the Tribunal had considered the material before it but was unable to make a decision in her favour and invited her to attend a hearing. Smith FM summarised the steps taken by the Tribunal to notify the applicant of the hearing date through Mr Mollah (at [10] to [14]).

5                     Prior to its attempts to contact the authorised recipient, the Tribunal was aware that the signature on the application form to the Tribunal did not match the signature on the Department’s file. There is no evidence that the Tribunal was on notice that the signature on the application, while not that of the applicant, had been placed there without her authorisation.

6                     When the Tribunal received no reply to its correspondence, it made numerous attempts to contact the authorised recipient. It encountered an answering machine and left messages. There was no response. The Tribunal called the applicant on her mobile phone and left contact details. There was no response. The steps taken by the Tribunal demonstrate that the Tribunal was aware that the migration agent was not responding to its attempts to notify the applicant of the pending hearing.

7                     The Tribunal noted in its reasons that the applicant did not appear and the Tribunal made a decision pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’) without taking any further action. As noted by Smith FM, the application for a protection visa ‘was completed with only cursory information in support of a claim for protection’ (at [4]). The application to the Tribunal contained no additional information. The Tribunal concluded that the applicant’s claims were very general and lacking in useful detail and was not satisfied that she was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

8                     The applicant made unsworn claims of misconduct by her migration agent before the Federal Magistrate, specifically that she had been informed of the proposed Tribunal hearing by Mr Mollah but advised by him that she did not need to be present. As his Honour noted, Mr Mollah’s registration has since been cancelled (at [26]). However, even accepting the assertions of misconduct to be true, his Honour was correct in finding that they do not give rise to any jurisdictional error on the part of the Tribunal (at [27]).

9                     Federal Magistrate Smith held that notice to an authorised recipient had been given in compliance with s 441G(1) of the Act and, by reason of s 441G(2), the Tribunal was taken to have given notice to the applicant. For that reason, his Honour held that the Tribunal had power to proceed under s 426A(1) of the Act and no jurisdictional error was established (at [23]) and [27]).

Affidavit and draft notice of appeal

10                  In her affidavit in support of this application, the applicant says that she had no knowledge of the hearing before the Tribunal. The applicant relies in the affidavit on the fact that the migration agent ‘was not doing his job’ and that she had been unable to contact him. She asserts that the Tribunal should have written to her because her address was also provided as an address for correspondence. She says that this was required for a ‘fair decision to be made according to law’ and that the Federal Magistrate failed to properly consider and apply s 494D of the Act.

11                  Consistent with her affidavit, the grounds in the draft notice of appeal assert a failure on behalf of the Federal Magistrate to apply s 494D of the Act and to consider the circumstances which led to the applicant not receiving the hearing invitation. That section is not applicable to the applicant’s complaint. As his Honour noted, the relevant section in respect of service by the Tribunal on an applicant by his or her authorised recipient is s 441G (at [20]).

12                  The remaining matters raised in the application to the Federal Magistrates Court were noted by Smith FM to give only a list of general heads of jurisdictional error without any sufficient particulars or substance (at [17]). None of those matters are raised in the draft notice of appeal.

Evidence on the application for leave

13                  The applicant, in unsworn evidence, informed the Court that she had given all of her documents to Mr Mollah and that he did not notify her of the Tribunal hearing, that he was not a responsible person and had been suspended.

14                  Her attention was drawn to a file entry by the Tribunal recording that the signature on the application to the Tribunal does not match that on the Department file, the latter being, presumably, the signature on the application for a protection visa. A cursory examination of the two signatures confirms that notation.

15                  This raised the question of the validity of the application to the Tribunal and the authority given to the migration agent to complete the form for the purposes of s 441G of the Act. Section 441G(1) provides that the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant if ‘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’.

16                  The applicant was offered the option of giving evidence orally or, with an adjournment, preparing evidence in writing as to the signature and the instructions, if any, given to the migration agent with respect to the application. The applicant chose to give evidence orally.

17                  The applicant confirmed her signature on the application for a protection visa. She also confirmed she received the letter from the Department, sent to her residential address, notifying her of the Minister’s decision. She said that she realised that she needed to apply for a review of that decision. Every time that she went to her migration agent he told her not to worry and that he would take care everything, including the review proceeding before the Tribunal.

18                  The applicant’s evidence about the application to the Tribunal was not clear. She said that she thought that she would be called to attend the Tribunal hearing but did not know if the agent had lodged the application for her. When asked how she expected to come before the Tribunal to explain her case, she responded that, by giving the documentation to her agent, she would receive a reply and attend the hearing. She said that she gave her materials to Mr Mollah and that he acted on her behalf and submitted all matters on her behalf.

19                  The applicant’s evidence was ‘I just gave all my materials, all my documents to [the agent] and he acted on my behalf’and ‘I asked him to convey my, to submit my application saying all the matters on my behalf’. The applicant said that she had not seen her application form before and that it was not her signature on it. She did not receive any letters from the Tribunal. When referred to the Tribunal file note to the effect that the Tribunal had left a message on her phone, she denied having received it.

Consideration

20                  It is theoretically possible that the migration agent’s authority was limited and extended to lodging the application for review but not to completing the details of the application, including signing the application and authorising the agent to receive documents. However, no such assertion was made by the applicant. There is no evidence that the applicant did not intend her instructions to extend to the signing of the application on her behalf or to authorise the agent to receive correspondence on her behalf.

21                  To the contrary, in the ordinary course, the instruction to the agent to submit “all the matters on my behalf” would include the completion of the application form and lodgement of the application with the Tribunal. Similar instructions have been found to give rise to an authority to sign a protection visa application (SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [7]). On the basis of the evidence before me, and in circumstances where the applicant gave that general authority and expected it to result in an appearance before the Tribunal, I am satisfied that the agent’s authority extended to an authorisation to sign the application form on her behalf.

22                  I am also satisfied, in the circumstances, that the agent’s authority extended to an authority for Mr Mollah to receive correspondence in relation to the review by the Tribunal. That is, the applicant authorised the agent to give the Tribunal written notice of his own name and address as the person authorised by the applicant to receive documents. Such notice was given by Mr Mollah when he completed and sent the application form. He became an “authorised recipient” within the meaning of s 441G(1)(b) of the Act.

23                  An application to the Tribunal for review must be in the approved form (s 412(1)(a) of the Act). Accepting the applicant’s evidence that the signature on the application form was not hers, a question arises as to the status of the application to the Tribunal. It may be that an application must be signed personally by an applicant to be in approved form. If the application was defective for this reason, the applicant had not applied to the Tribunal for review of the delegate’s decision. The Tribunal then had no jurisdiction to hear the application. It would follow that an appeal to this Court alleging a failure by the Tribunal to give notice of the hearing and failure by the Federal Magistrate to make that finding does not arise and the application for an extension of time to appeal should be refused (SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [4] to [5]).

24                  If an application form need not be signed by an applicant personally, the application for review by the Tribunal was validly made. However, as I have noted, notice was given to the Tribunal that Mr Mollah was the “authorised recipient” for the purposes of s 441G of the Act. Where the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant (s 441G(2) of the Act). Indeed, the Tribunal is required to give documents to the authorised recipient (s 441G(1)). Accordingly, in corresponding with the agent alone, the Tribunal did not deny the applicant procedural fairness. If the application was valid the Tribunal was entitled to proceed pursuant to s 426A of the Act and no jurisdictional error has been established.

25                  The parties did not make submissions on whether an application to the Tribunal must be signed personally by an applicant in order to be in approved form. In any event, the proposed appeal must fail. It cannot be established that there has been any jurisdictional error on the part of the Tribunal.

26                  The application for an extension of time in which to file and serve a notice of appeal should be dismissed with costs.

27                  In the circumstances, the applicant may wish to seek the exercise by the Minister of her power under s 48B of the Act, thereby permitting the applicant to make a second application for a protection visa.

Associate:

Dated: 1 November 2006

The Applicant appeared in person.