FEDERAL COURT OF AUSTRALIA

SZUUR v Minister for Immigration and Border Protection [2016] FCA 123

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs in an amount of $8,290.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 13 October 2015. The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 25 June 2014: SZUUR v Minister for Immigration & Border Protection [2015] FCCA 2532 ("SZUUR"). The Tribunal affirmed a decision of a delegate of the Minister made on 6 December 2013 to refuse the grant of Protection (Class XA) visas to the appellants.

Background

2    The appellants are citizens of Bangladesh. They are a husband and wife and I will refer to them that way when it is necessary to distinguish between them. The appellants arrived in Australia on 18 May 2013 on a Sponsored Family Visitor (UL 679) visa, sponsored by the husband's sister. The visas expired on 18 July 2013.

3    On 16 July 2013, the husband lodged an application for a protection visa with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection). The appellants say that the husband’s address in response to question 16 (“information about residence”) on page 2 of the husband's visa application form, was misspelled by omitting the letter “r” in an “art” letter combination in the street name (which I will refer to as the “incorrect address”). He specified his postal address as being the same as the residential address. The appellants say the address was correctly spelled in response to question 67 (the “declaration” section) on page 14 of their visa applications forms and I will refer to it as the “correct address”.

4    The wife lodged an application for a protection visa as a member of the husband’s family unit on the same day. She did not advance any claims for protection of her own. The wife's postal address effectively relied on the residential address specified in her husband's application. The address which appeared in the “declaration” section of the wife’s visa application form was the one which the appellants say is correctly spelled.

5    The husband set out his claims in a two page statement filed with his application. He claims to fear persecution if he is returned to Bangladesh because of his longstanding involvement with the Bangladesh Nationalist Party (“BNP”). He claims to have been involved with the student and youth wings of the BNP and to have attended meetings, demonstrations and other party activities, including canvassing votes for the BNP candidate in the 2008 elections. As a result of his involvement with the BNP he was subject to threats of physical violence by the Awami League. He says that in February 2009, Awami League “goons” came to his home and attacked his brother who was hospitalised for two days. He was not home at the time.

6    The husband claims to have been elected as an executive member of the Fatullah Thana BNP in 2010, after which he gradually became known as an activist. In December 2011, while he was at a BNP procession, he was attacked by members of the Awami League and was hospitalised for seven days. He also claims that after the procession, false charges were laid against him by the Bangladeshi police.

7    The husband attended an interview with a delegate of the Minister on 29 November 2013. On 6 December 2013, the delegate refused to grant the husband a protection visa because he was not satisfied that he was a person to whom Australia has protection obligations under the Migration Act 1958 (Cth). The delegate therefore also refused to grant the wife a protection visa because her application relied on the success of her husband’s application. The letter advising the husband of the delegate’s decision was addressed to him at the incorrect address.

8    The appellants applied to the Tribunal for a review of the delegate's decision on 23 December 2013. In the application for review lodged with the Tribunal, the husband specified the same incorrect address in response to question 3 (“Your contact details in Australia”) and question 13 (“Where do you want us to send correspondence about your application?”).

9    The Tribunal’s file contains a copy of a letter dated 24 December 2013 acknowledging receipt of the applications. This letter is addressed to the husband at the incorrect address.

10    The appellants attended the Tribunal registry on 24 March 2014 to provide documents in relation to their daughter, born 19 January 2014, in an effort to include her in their applications. The appellants say that they filed the following documents at the registry:

(1)    A cover letter dated 24 March 2014 signed by the husband explaining that he wanted to add his daughter to his application for a Protection (Class XA) visa. This document was stamped as having been received by the Tribunal on 24 March 2014;

(2)    The birth certificate of the appellants' daughter. This document was stamped as having been received by the Tribunal on 24 March 2014;

(3)    A completed Form 1022 – “Notification of Change in Circumstances”. This document is not stamped as having been received by the Tribunal. However the appellants say that they specifically recall delivering this document to the Tribunal on 24 March 2014, along with the cover letter and their daughter's birth certificate. The husband’s address provided in response to question 8 on that form is correctly spelled. Section 14 of the form headed “Details of Changes” includes a notation: “List details of the information provided on your application which is no longer correct and provide the new current information.” The only information set out in this section relates to the daughter.

11    On 24 March 2014, the Tribunal gave the appellants by hand a letter from the Tribunal to Medicare indicating that the appellants had applications pending before the Tribunal. That letter stated that “The mailing address we have is” the incorrect address. Nothing was said to correct the address.

12    On 22 April 2014 the Tribunal wrote to the appellants inviting them to attend a hearing on 24 June 2014 in order to give evidence and present arguments. The copy of the letter on the Tribunal’s file indicates that it was addressed to the husband at the incorrect address. The letter contained a notice to the effect of s 426A of the Migration Act warning that: “If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.”

13    On 30 April 2014, the Tribunal wrote to the husband at the incorrect address inviting him to comment on the Tribunal’s view that it lacked jurisdiction to include the daughter in the husband’s application. This matter was to be determined by the Tribunal member dealing with the husband’s application.

14    On 25 June 2014 the Tribunal affirmed the delegate’s decision to refuse to grant protection visas to the appellants. The Tribunal set out its reasons in a Statement of Decision and Reasons (“Decision Record”). The Tribunal notified the husband of the decision by sending the Decision Record to the incorrect address.

15    The appellants filed an application in the Federal Circuit Court for judicial review of the Tribunal’s decision on 23 July 2014. The address for service stated in the application for judicial review in the Federal Circuit Court was the incorrect address.

16    The appellants say that they did not receive either of the Tribunal’s letters dated in April 2014. In the proceedings in the Federal Circuit Court, the appellants admitted that they did receive letters addressed to the incorrect address from (1) the Department (one inviting the husband to attend an interview with the delegate and another informing him that his visa application had been refused), (2) the Tribunal (one dated 25 December 2014 advising the husband that the applications for review of the delegate’s decision had been received and the other dated 25 June 2014 advising the appellants that the Tribunal had affirmed the delegate’s decision) and (3) the Minister’s solicitors (enclosing a copy of the court book for the Federal Circuit Court proceedings).

Tribunal Decision

17    The Decision Record indicates that the appellants did not appear at the hearing on 24 June 2014 and that the Tribunal decided to make its decision on the review pursuant to s 426A of the Migration Act without taking any further action to enable the appellants to appear before it.

18    The Decision Record states that the Tribunal listened to the recording of the husband's interview with the delegate on 29 November 2013 but as the husband did not attend the hearing and had not provided documents or evidence in support of his application, that the Tribunal was left with claims that were “untested by the Tribunal and stated in general terms”. The Tribunal found that there was not sufficient information to be satisfied that his claims were credible: Decision Record at [6], [11] and [18].

19    The Tribunal was not satisfied that the husband was involved in the BNP. He did not provide any letters of support from the BNP in Australia or in Bangladesh or any medical evidence to support his claim that he had been hospitalised following an attack at a BNP Procession in December 2011; the Tribunal would have asked him why he did not provide this evidence when it appeared to be readily available. While the husband had provided some limited information about the BNP, the Tribunal was unable to test his knowledge of the BNP or the elections in 2001 and 2008 or to ask him whether he had been involved with the BNP while he was in Australia and if not, why he had not been in contact: Decision Record at [12]-[13].

20    The Tribunal was not satisfied that the husband was attacked or threatened by the Awami League. The husband did not provide any evidence in support of his claim that Awami League “goons” had attended his house in February 2009 and attacked his brother. The Tribunal queried the nature of his relationship with his brother, since the husband had filed a Remaining Relative visa application in 2005 which indicated that he was not in contact with this brother who lived in India; this is a matter on which the Tribunal would have asked questions had the husband attended the hearing. The Tribunal also expressed concern regarding the eight month delay between the alleged attack in December 2011 and when the husband applied for a Sponsored Family Visa in August 2012. As the husband had lived at the same address and worked for the same employer from March 2009 until he came to Australia in May 2013, the Tribunal also had reservations about his claim that he had been able to avoid being attacked by the Awmai League because he had been “careful”: Decision Record at [14], [15] and [17].

21    Finally, the Tribunal was not satisfied that the Bangladeshi police had laid false charges against the husband following the BNP Procession in December 2011. The husband did not provide any evidence of the nature, timing or status of the alleged false charges. Again, the Tribunal queried how the husband had been able to remain living at the same place and working for the same employer until his departure in May 2013 if there were outstanding criminal charges against him: Decision Record at [16].

22    Having rejected the husband's claims, the Tribunal was not satisfied that he was owed a protection obligation, either as a refugee under s 36(2)(a) or as a beneficiary of complementary protection under s 36(2)(aa) of the Migration Act: Decision Record at [19]–[20].

23    As a result, the wife’s application was also unsuccessful. The Tribunal also found that as the daughter was born after the date of the delegate’s decision to refuse the appellants’ application for Protection (Class XA) visas, she could not be joined to the husband’s application, noting that the Tribunal had not received a response to its letter of 30 April 2014: Decision Record at [21]-[25].

Judicial review by the Federal Circuit Court

24    The primary judge heard the review application on 4 August 2015 and judgment was delivered on 13 October 2015.

25    The application was based on the following grounds (as written):

1.    The Applicants did not receive the hearing invitation letter dated 22 April 2014 referred to by the Tribunal in paragraph 7 of its decision. Either:

a.    The Tribunal did not send the letter, or did not send the letter to the correct address. This is a jurisdictional error.

b.    Alternatively, even if the Tribunal sent the letter to the correct address, the Tribunal should have taken further steps to:

i.    bring the hearing to the applicants' attention, such as phoning the applicants to confirm they received the hearing invitation letter; or

ii.    obtain further information from the applicants concerning their claims.

The Tribunal's failure to take such further steps involves jurisdictional error.

26    On 22 April 2015, the primary judge ordered the Minister to show cause why relief should not be granted in relation to ground 1(a) of the application: SZUUR at [15].

27    In respect of Ground 1(a), the primary judge understood the appellants' case to be that because the letter from the Tribunal inviting them to give evidence had been sent to the incorrect address, it was not sent in accordance with a method prescribed in s 441A of the Migration Act such that the appellants could not be deemed to have received it under s 441C. As a result, the appellants were denied procedural fairness: SZUUR at [20].

28    The appellants referred to a number of authorities relating to the importance of strict compliance with the notice requirements in Part 7 of the Migration Act. These were reviewed and considered by the primary judge at paragraphs [21] – [29].

29    The Minister submitted that as the incorrect address was the “last address for service” notified by the appellants to the Tribunal, that the appellants were deemed to have received the invitation by reason of s 441A(4) and s 441C(4) of the Migration Act. In respect of this contention, the primary judge made four (4) principal findings.

30    First, the appellants had used the correct and incorrect address interchangeably in their visa documents, the documents provided to the Tribunal as well as the documents provided to the Federal Circuit Court: SZUUR at [83].

31    Secondly, the "last address for service" provided by the appellants in their visa application forms and their review application form was the incorrect address. Whilst the correct address had been used elsewhere, the Tribunal was entitled to use the spelling of the address for service specified in the relevant part of the form. Further, the primary judge noted that only the incorrect address had been used in the application for review form lodged with the Tribunal: SZUUR at [83].

32    Thirdly, the primary judge placed no special significance on the fact the correct address had been used in the Form 1022 allegedly filed with the registry on 24 March 2014 as this was not a notification of a new address for service: SZURR at [84].

33    Finally, the primary judge noted that the appellants did not respond to an invitation in a letter from the Tribunal dated 22 March 2015 asking them to verify the information the Tribunal had on record: SZURR at [85] – [86].

34    In the result, the primary judge found that the incorrect address was the “last address for service” provided to the Tribunal by the appellants in connection with the review. That was sufficient to engage the deeming provisions in s 441C(4) the Migration Act such that the appellants were taken to have received the Tribunal's hearing invitation: SZUUR at [87].

35    The primary judge further held that even if he was wrong in concluding that the deeming provision in s 441C of the Migration Act had been engaged, it was more likely than not that the correspondence sent by the Tribunal had been received by the appellants: SZUUR at [88].

36    In dismissing the application, the primary judge concluded that the Tribunal had satisfied its procedural fairness obligations and therefore that the appellants had failed to establish that the decision of the Tribunal was affected by jurisdictional error: SZURR at [89]-[90].

Appeal to this Court

37    The appellants filed a notice of appeal from the Federal Circuit Court's decision on 22 November 2015. The appellants have seven (7) grounds of appeal (as written):

1.    The Appellant appeals from the judgment as set out in this notice of appeal.

2.    The Federal Circuit Court Judge erred in law in deciding my application not finding that I was denied procedural fairness on the ground that the Tribunal sent a letter inviting us to attend a hearing of the Tribunal to give oral evidence in relation to our application for a protection visas to the wrong address.

3.    The Federal Circuit Court erred in law not finding that the Tribunal failed to consider that I was not a victim of persecution for my political belief prior to my departure from Bangladesh as an activist of Bangladesh Nationalist Party (BNP).

4.    The Honourable Federal Judge did not find that there was a lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal refused our application for a protection visa without taking further oral evidence in relation to the harm I experienced in Bangladesh for my political belief and we shall be facing significant risk of harm if returned to Bangladesh.

5.    The Honourable Judge made errors not considering the Tribunal's failure to give me a reasonable opportunity to respond to independent evidence in the possession of the Tribunal which suggests that I shall not be a victim of harassment for my political belief if returned to Bangladesh.

6.    The Honourable Judge made error to find that the Tribunal failed to accept that the persecutions I experienced in Bangladesh were genuine and well founded and my life was under threat in Bangladesh and the Tribunal refused my claim on the ground that I am not a credible witness for my claims without giving me the opportunity to give oral evidence before the Tribunal.

7.    The Honourable Judge erred in not finding that the Tribunal erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s.36(2) of the Act of Protection visa;

8.    The Honourable Judge erred in law not finding that the tribunal failed to consider the false charges laid against me (first named applicant) for my involvement in BNP politics. The Tribunal failed to consider that I shall be the victim of significant harassment for my political belief if I return to Bangladesh now or in the foreseeable future.

38    The husband handed up brief written submissions and appeared with the assistance of an interpreter.

39    The Minister filed written submissions and appeared by counsel at the hearing.

40    The Minister opposed the grant of leave to the appellants to raise the grounds of appeal insofar as they extend beyond the ground raised in the application before the Federal Circuit Court, namely, whether the Tribunal acted within its power to determine the review under s 426A of the Migration Act where the appellants allege that the invitation to attend the Tribunal hearing was sent to the wrong address and that they did not receive it. The force of the appellants’ written submissions support the view that the appellants did not intend to go beyond the issues considered by the Federal Circuit Court and that the form of the grounds of appeal to this Court are intended to express emphatic disagreement with the decision of the Tribunal. In any event, I am not satisfied that it would have been appropriate to grant leave to permit new grounds of appeal to be advanced since it is difficult to see how the primary judge could have erred in relation to matters which he was not called upon to decide.

Consideration

41    What follows relies significantly on the Minister’s written submissions.

Was s 441C engaged?

42    Sections 425 and 425A of the Migration Act require the Tribunal to invite an applicant for a protection visa to appear before the Tribunal to give evidence and present arguments relating to the issues arising in connection with the decision under review. For that purpose, the Tribunal must give notice of the day, time and place at which the applicant is scheduled to appear. The combined effect of ss 441A(1) and (4) is that one method by which the invitation may be given to the applicant is by the Tribunal sending the invitation within 3 working days of the date it bears by prepaid post to the “last address for service provided to the Tribunal by the recipient in connection with the review”. It is deemed to have been received 7 working days after the date of the document: s 441C(4)(a).

43    Section 441C(4) operates as a deeming provision by which the recipient of a document from the Tribunal is “taken to have received it” by operation of law. It does not create a rebuttable presumption of fact: Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13]-[14] per Spender, Keifel and Dowsett JJ. The legislative purpose of this scheme is to achieve administrative certainty. The decision has clearly been taken by the legislators that that objective should override the injustice which may occur because a particular visa applicant, sometimes entirely without fault on that person’s part, does not in fact receive a notice in a timely way or in some cases at all: Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77; [2000] FCA 377 at [32] per O’Connor and Mansfield JJ.

44    The appellants did not challenge the evidence which was accepted by the primary judge that the letter of 22 April 2014 was despatched by prepaid post to the incorrect address: see SZUUR at [44]. The incorrect address was the address specified by the husband as his residential and postal address in the visa protection application and in the application to the Tribunal for a review of the delegate’s decision. I do not consider that the primary judge erred when he said that, even if it could be established that the Form 1022 referred to at [10(3)] above had been lodged with the Tribunal on 24 March 2014, it did not supersede these notifications of address because no change of address was specified in that form: see SZUUR at [84]. I also agree that this matter calls for a practical approach: the only address provided to the Tribunal for communication with the appellants was the incorrect address. It would be an absurd result if, through no fault of the Tribunal, an applicant for review could circumvent the legislative scheme by the simple expedient of providing inexact addresses.

45    I accept the Minister’s submissions that the primary judge did not err by finding that the incorrect address was the “last address for service” provided to the Tribunal by the appellants in connection with the review and that that was sufficient to engage the deeming provisions in s 441C(4) the Migration Act such that the appellants were taken to have received the Tribunal's hearing invitation: SZUUR at [87].

46    In those circumstances, the Tribunal was not in error in deciding to proceed with a determination of the appellants’ application pursuant to s 426A.

Appeal fails on the facts

47    If a visa applicant receives an invitation to a hearing, the fact that the Tribunal fails to follow the requirements set out in ss 441A and 441C in all respects need not result in a conclusion that there has been jurisdictional error without consideration of the extent and consequences of the departure: Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at [35] per French CJ, Gummow, Hayne, Crennan and Bell JJ; what matters is whether the applicant has received timely and effective notice of the hearing.

48    In my opinion, the primary judge did not err in his finding at that the appellants received the invitation to the hearing: SZUUR at [88]. His finding was based on cogent reasons set out in that paragraph:

(1)    Other correspondence sent by the Tribunal to the incorrect address was in fact received by the appellants;

(2)    No correspondence allegedly not received by the appellants was returned to the Tribunal; and

(3)    The appellants had not been credible witnesses. The primary judge found that the difficulties with the credibility of the evidence of the appellants, particularly the husband, had been “so great that evidence of non receipt by them of the hearing invitation should not be accepted and I do not accept it”. This finding was arrived at after careful review of the evidence, with the primary judge having taken full advantage of his observation of the husband and wife as witnesses. I see no basis for appellate intervention in this finding.

49    On that basis, even if s 441C(4) were not engaged, there was no denial of procedural fairness, and again the Tribunal did not fall into error by determining the appellants’ review application under s 426A.

Conclusion

50    For these reasons the appeal should be dismissed.

51    The Minister relied on the affidavit of Mikhail Glavac, a lawyer employed by Clayton Utz, in relation to an application for a short form bill of costs in an aggregate amount of $8,290 and on the basis that counsel’s fees amount to $5,100. The amount provided in item 15(d) of Schedule 3 of the Federal Court Rules 2011 (Cth) in relation to a migration appeal finalised after a final hearing is $6,439 plus disbursements. Item 16 of Schedule 3 provides that counsel’s fees are a disbursement and that the amount allowed is to be assessed under the National Guide to Counsel Fees. The relevant range under that Guide is $1,275 to $5,100. I will order that the appellants pay the Minister’s costs in the amount of $8,290.

Associate:

Dated:    18 February 2016