Chen v Minister for Immigration
[2005] FMCA 1000
•14 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHEN v MINISTER FOR IMMIGRATION | [2005] FMCA 1000 |
| MIGRATION – Review of decision of MRT – where a letter sent to the applicant did not have the name and address of the applicant at the top of the page – where the letter failed to comply with the form required under section 379A(4)(ii) – whether the Tribunal has discretion to send forms and information to the applicant instead of the authorised recipient – whether these requirements are mandatory requirements. |
| Migration Act 1958, ss.379A, 379G, 359A, 379A(4)(ii), 379A(4)(c)(i), 379G(2), 479A(4)(c)(ii), 379G(iv), 359C Federal Magistrates Court Rules 2001 |
| Applicant VEAN of 2002 v Minister for Immigration [2003] FCAFC 11 Makhu v The Minister [2004] FCA 221 SAAP and Anor v The Minister [2005] HCA 24 |
| Applicant: | YU CHEN CHEN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2055 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 14 July 2005 |
| Date of Last Submission: | 14 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 July 2005 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Nigel Dobbie of Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr Geoffrey Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The decision of the MRT is invalid and of no effect
The application for review be referred back to the Tribunal to be heard and decided in accordance with law
The respondent to pay the applicant's costs in the sum of $4000
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2055 of 2003
| YU CHEN CHEN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This proceeding involves a consideration of the provisions of section 379A and 379G of the Migration Act as a primary or preliminary point. The applicant came to Australia as a student, he was not particularly successful in that role. His educational establishment put in train the procedures for a cancellation of his visa. His visa was cancelled by the delegate on 26 May 2003. The applicant applied for review of that decision from the Migration Review Tribunal. In the form, found to commence at CB17 and conclude at CB21, the applicant gives his name and his residential address. At CB18 he gives the name of his representative. The form states under section 4:
“The following details should be provided if you wish to have a representative assist you with this application and you wish them to receive all correspondence in relation to your application. As an authorised recipient pursuant to section 379(2) of the Migration Act any correspondence given to your representative by the Tribunal will be taken to have been given to you.”
The applicant then names a Ms Kitty Kwong and gives an address for her. The Tribunal had some concerns that it wished the applicant to respond to and on 24 July 2003 it sent a letter pursuant to the provisions of section 359A of the Migration Act inviting the applicant to comment in writing on certain information. A letter was sent to the applicant Mr Yu Chen care of Australian College Information Centre, 5/580 George Street, Sydney. A copy of the letter was sent to Mr Chen at the home address which he gave upon the form that I have previously referred to.
The first point that was taken by the applicant was that the manner in which the form was sent to him at his home did not establish that it was sent to him at his home and therefore did not comply with section 379A(4)(ii). I think the gravamen of Mr Dobbie's submission was that a letter to be sent to the applicant had to be addressed to the applicant by placing both his name and his residential address at the top of the letter. That did not happen. What happened was that the letter was sent to the applicant addressed to him care of the Australian College Information Centre was placed in an envelope addressed to him at the Pitt Street address. I am satisfied that the use of the word "address" means to indicate the person to whom the letter is being sent and that was clearly done. The letter was sent to him at the Pitt Street address and therefore I think complies with the subsection. The letter which was sent to the Australian College Information Centre does not comply with the subsection; Applicant VEAN of 2002 v Minister for Immigration [2003] FCAFC 11. If it was not for section 379G the failure to comply properly with subsection 379A(4)(c)(i) would not to my mind be fatal because the notice was sent to the applicant himself pursuant to the provisions of subsection 479A(4)(c)(ii) but section 379G must be considered. It is in the following form:
Authorised recipient
(1) If
(a) a person (the applicant ) applies for review of an MRT-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.
Note: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3) The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient.
(4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.
(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.
Mr Chen was a person who applied for a MRT review of the decision. He did give the Tribunal written notice of the name and address of another person authorised by him to receive documents, an authorised recipient. The Tribunal was therefore required not just to give the authorised recipient any documents that it would otherwise have been to the applicant but it is required to give those documents to the authorised recipient instead of the applicant. This is an important mandatory requirement. I am aware that subsection 379G(2) permits the Tribunal to give the applicant a copy of any document that it has given to the authorised recipient. This is a discretion granted to the Tribunal. Does the discretion granted to the Tribunal to do that take away the effect of the mandatory requirement to provide the information to the authorised recipient instead of the applicant so that service upon the applicant himself is effected even though there is no service upon the authorised recipient? Mr Kennett for the Minister argues yes and he refers me to the decision of Mansfield J in Makhu v The Minister [2004] FCA 221. Mr Dobbie for the applicant says no. He relies on the dicta of the High Court in SAAP and Anor v The Minister [2005] HCA 24 and in particular that of Gummow J at [133 et sec].
Mr Dobbie posits a situation which indicates why I should prefer his view to that of Mr Kennett. He suggests that the requirement to give the information to the authorised recipient could be considered a safeguard against the possibility that the applicant may be absent or sick, unable to speak or read English or otherwise incapable of communication when the Tribunal proposes to send correspondence to him. In order to protect the Tribunal from the vagaries of the behaviour of an applicant, this provision has been inserted so that provided somebody who the applicant has given his authority to receives a document then the applicant shall be taken to have received it himself.
The fact that the Tribunal is entitled also to send a copy of the correspondence to the applicant, does not detract from the importance of the provision requiring it to send the document to the authorised representative for the reasons that Mr Dobbie posits. There is a similar provision in subsection 379G(iv) which I believe supports Mr Dobbie's view that the section itself is bent upon ensuring that at no stage shall the applicant's authorised representative be kept out of the loop.
In making the point that I have above, I am sensible of the fact that I appear to be flying in the face of the decision of his Honour Mansfield J in Makhu (supra). With respect to his Honour, whilst it may well be that his decision was correct when handed down, the views of the High Court concerning the importance of mandatory provisions of the Migration Act and the fact that his Honour may not have had the advantage of Mr Dobbie's assistance and his association of subsection 379G(iv) with subsection 379G(ii) permits me, I believe, to respectfully differ from the views expressed by him in that case. His Honour takes a view different to mine as to the work that is required of the word "instead". It appears to me that he uses it to give the Tribunal the ability to choose between which parties the Tribunal may address, whereas I believe that the Tribunal has no such discretion and that, in fact, there are no circumstances in which the authorised recipient should not receive a document.
Mr Kennett, although advancing many arguments against the other propositions put by Mr Dobbie, concedes that if I find in this manner the applicant's case must succeed. He does not agree with me, but he accepts that this will be the affect of such a finding. He does not wish to argue that there would be no utility in exercising my discretion to grant review and I respect that decision. I do not propose to rehearse the arguments put by Mr Dobbie in relation to the other matters, because it seems to me that he has been wholly successful on his main point.
I find that the decision of the Migration Review Tribunal, which was given in the absence of a hearing because the applicant did not respond to the section 359A notice and the Tribunal therefore proceeded under section 359C of the Act, to be invalid and of no effect. I order that the application for review be referred back to the Tribunal to be heard and decided in accordance with law. I will grant the necessary prerogative writs if requested. I order that the respondent pay the applicant's costs in the sum of $4000.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
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