Dnu20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 20

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DNU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 20

File number(s):	MLG 2896 of 2020
Judgment of:	JUDGE RILEY
Date of judgment:	24 January 2022
Catchwords:	MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority misunderstood the evidence – whether the applicant’s appointment of an authorised representative had become invalid or stale – whether the Secretary’s error in failing to notify the Authority of the applicant’s change of address was material.
Legislation:	Migration Act 1958, s.473HG
Cases cited:	Khan v Minister for Immigration and Border Protection [2015] FCA 125
Division	Division 2 General Federal Law
Number of paragraphs:	46
Date of hearing:	17 November 2021
Place:	Melbourne
Counsel for the applicant:	Min Guo
Solicitor for the applicant:	Victoria Legal Aid
Counsel for the first respondent:	Jonathan Barrington
Solicitor for the first respondent:	Mills Oakley
Counsel for the second respondent:	No appearance
Solicitor for the second respondent:	Mills Oakley

ORDERS

MLG 2896 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DNU20
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	24 JANUARY 2022

THE COURT ORDERS THAT:

1.The application filed on 7 August 2020, amended on 1 September 2021 and further amended on 3 November 2021 be dismissed.

2.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,853.

Note:   The form of the order is subject to the entry in the court’s records.

Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE RILEY:

INTRODUCTION

1. This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

   BACKGROUND

2. In his submissions filed on 20 September 2021, the Minister provided the following background to this matter:

   3.The Applicant is a citizen of Sri Lanka and was born there … [in] 1992. The Applicant arrived in Australia as an unauthorised maritime arrival on 8 November 2012. He applied for the visa on 14 February 2017.

   4.In a statutory declaration declared on 22 October 2016, attached to the visa application, the Applicant claimed to fear harm from the Criminal Investigation Department (CID) because of:

   4.1.his and his father’s involvement in the People’s Liberation Organisation of Tamil Eelam, particularly his involvement in the 2010 national parliamentary election;

   4.2.     his Tamil ethnicity; and

   4.3.     his imputed connection to the Liberation Tigers of Tamil Eelam.

   5.On 11 May 2017, the Applicant attended an interview before the delegate. On 23 May 2017, the delegate refused to grant the visa. The delegate’s decision was referred to the Authority.

   6.On 18 September 2017, the Applicant completed a “Form F2” appointing Michael Pena-Rees of Armour Legal as his replacement representative and authorised recipient in respect of his review (CB 242).

   7.On 12 March 2018, the Authority affirmed the delegate’s decision.

   8.On 21 June 2019, the Applicant sought judicial review of the Authority’s first decision in the Federal Circuit Court.

   9.On 23 March 2020, a manager was appointed from Corrs Chambers Westgarth to Mr Pena-Rees’ law practice, Armour Legal Pty Ltd. On 2 May 2020, Mr Pena-Rees’ registration as a migration agent ceased. For completeness, the Respondent does not dispute the facts in the notice to admit filed by the Applicant dated 7 September 2021.

   10.On 8 May 2020, his Honour Judge Riethmuller made orders, among other things, quashing the decision of the Authority dated 12 March 2018 and issuing a writ of mandamus to the Authority, requiring it to determine the application for review according to law.

   11.On 19 June 2020, the Authority sent a letter concerning the reconsideration of the Applicant’s case by the Authority (CB 278). The letter was sent to Mr Pena-Rees, and a “courtesy copy” was sent to the Applicant at his email address, [email protected].

   12.It is apparent that there were no further communications between the Applicant or his representative (and authorised recipient) and the Authority from 19 June 2020, until 9 July 2020 when the Authority affirmed the delegate’s decision (CB 289).  

   THE APPLICANT’S CLAIMS

3. The Authority provided the following summary of the applicant’s claims for protection at paragraph [7] of its reasons for decision:

   •In 1992 he was born in Colombo and grew up in Vavuniya, Northern Province. His father was an influential political activist with the People’s Liberation Organisation of Tamil Eelam (PLOTE).

   •In 1998/99 the family relocated to India due to safety concerns related to his father’s occupation and returned in 2004.

   •In 2007 the family relocated to Matale, a Sinhalese area in the Central Province, due to further safety concerns.

   •As a Tamil he faced bullying and harassment from Sinhalese people and the Sri Lankan authorities in Matale, who accused him of LTTE connections.

   •In 2009 the family moved to Colombo, where he was also targeted. On one occasion the Sri Lankan police detained him and two other Tamil boys in their van for five hours, during which he feared for his life.

   •In April 2010 his father stood as the PLOTE candidate for the national parliamentary elections in Vavuniya. The applicant assisted the campaign by doorknocking, putting up posters, and rallying on the streets. The Sri Lankan authorities were aware of his involvement. His father lost the election.

   •The Criminal Investigation Division (CID) detained the applicant on two occasions in May and August 2010, for a day each time, during which they beat and threatened him. The CID wanted to know why he was involved with PLOTE and accused him of LTTE involvement due to his big physical build and his association with some Tamil boys from the Vanni.

   •The applicant’s father’s PLOTE contacts managed to secure his release on these two occasions; however the applicant was forced to continuously change his address as the CID were still searching for him. In October 2012 he departed Sri Lanka illegally by boat

   •If he returns to Sri Lanka he fears the Sri Lankan authorities, in particular the CID, will seriously harm or kill him because of: his Tamil ethnicity; his familial association with his father; his own involvement with PLOTE; his young age and strong build; his friendships; his imputed LTTE association arising from these factors; and his illegal departure and residence outside of Sri Lanka.

   •In 2014 his father passed away and the applicant will no longer be able to rely on the protection from other PLOTE members.

   •The CID continue to visit his house every month, interrogate his mother about his whereabouts, and threaten to harm him. In October 2016 the CID interrogated his younger brother, believing it was him, and the family are now worried for his brother’s safety.

   MATERIAL RELIED UPON

4. The applicant relied upon:

   (a)his further amended application filed on 3 November 2021;

   (b)his affidavits affirmed on:

   (i)1 September 2021;

   (ii)21 September 2021;

   (iii)22 September 2021; and

   (iv)20 October 2021;

   (c)the affidavits affirmed by Hannah Dickinson on:

   (i)1 September 2021; and

   (ii)20 October 2021;

   (d)documents returned under subpoena by the Migration Agents Registration Authority (exhibit 1);

   (e)the court book (exhibit 2);

   (f)the applicant’s notice to admit dated 7 September 2021 (exhibit 3);

   (g)the Minister’s response to the notice to admit dated 21 September 2021 (exhibit 4);

   (h)the applicant’s tender bundle (exhibit 5); and

   (i)his written submissions filed on:

   (i)1 September 2021;

   (ii)16 September 2021; and

   (iii)3 November 2021.

5. The Minister relied upon:

   (a)the court book (exhibit 2);

   (b)his response to the notice to admit facts (exhibit 4); and

   (c)his written submissions filed on:

   (i)20 September 2021; and

   (ii)11 November 2021.

   GROUND 1

6. The first ground of review in the application filed on 7 August 2020, amended on 1 September 2021 and further amended on 3 November 2021 (“the application”) is:

   The Immigration Assessment Authority (IAA):

   a.misunderstood evidence that was central to the Applicant’s claim that he was in hiding from the CID, such evidence being that he was only employed as an air conditioner technician in Vavuniya for six months, and not 18 months as the IAA had found;

   b.alternatively, made a finding that the Applicant worked as an air conditioner technician in Vavuniya for 18 months, when such finding was not open on the evidence.

7. The parties relied solely on their written submissions in relation to this ground. The applicant said in his written submissions filed on 1 September 2021 that:

   22.It is plain from the summary of the IAA’s reasons set out above that the IAA did not accept that the Applicant was hiding from the CID. The IAA recorded that the Applicant described to the delegate multiple changes of address during the period from August 2010 until his departure from Sri Lanka in October 2012, consistent with his written statement.²⁵ The IAA rejected that the Applicant was hiding from the CID ‘during this period’ at least in part because, whilst accepting that the Applicant stayed away from Vavuniya ‘until early 2011’, the Applicant had apparently worked as an air conditioner technician in Vavuniya ‘between February and July 2012’ and that ‘the CID could have found the applicant without difficult [sic] during this period if they were indeed looking for him as claimed’.

   23.The reference to the period of the ‘eighteen months prior to his departure’ must have been the 18 months from April 2011 to October 2012.

   24.Therefore, when reading the reasons as a whole, the natural understanding of the reference in [15] of the reasons to the period ‘between February and July 2012’ during which the Applicant was an air conditioner technician in Vavuniya is that the IAA found the Applicant was so employed there ‘between February 2011 and July 2012’, there being no other facts found by the IAA explaining what the Applicant apparently did in 2011, and no other way to account for the IAA’s 18 months referred to at [17]. The IAA thus reasoned that the CID could have easily found him given that he was in the same place, Vavuniya (according to the IAA), in the 18 months prior to departure.

   25.Plainly, it was wrong for the IAA to have understood that the Applicant worked as an air conditioner technician in Vavuniya from February 2011 to July 2012, because the only evidence of him working as such a technician in that city was that he did so from February 2012 to July 2012.²⁶ Had the IAA correctly appreciated that the evidence was not that the Applicant had as an air conditioning technician stayed put for 18 months from February 2011 to July 2012 but instead only from February 2012 to July 2012, it could not be said that the IAA would have just as easily applied the same reasoning that the CID could have found him ‘without difficult[y]’.

   26.The misunderstanding of a critical piece of evidence in such a material way is a jurisdictional error. ²⁷ The error could alternatively be described as the IAA making a finding that was not open on the evidence.²⁸

   :CB 94.

   :CB 90.

   :Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [70]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]-[121].

   :DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30](2).

8. The Minister said in his written submissions filed on 20 September 2021 that:

   13.In ground one of the amended application, the Applicant contends that the Authority misunderstood the Applicant’s evidence by erroneously finding that the Applicant worked as an air conditioner technician in Vavuniya from February 2011 to July 2012, instead of finding, consistently with the Applicant’s evidence, that he worked as an air conditioner technician in Vavuniya from February 2012 to July 2012.

   14.However, the Authority did not make the erroneous finding that the Applicant suggests. Instead, read fairly and in context, the Authority found that the Applicant worked as an air conditioner technician in Vavuniya from February 2012 to July 2012.

   14.1.That is the natural reading of the language employed by the Authority. The Authority said at [15] of its reasons that the Applicant indicated that “between February and July 2012 he worked as an air conditioner technician for a business in Vavuniya” (CB 293). The ordinary reading of “between February and July 2012” is between February 2012 and July 2012.

   14.2.In the same sentence at [15], the Authority expressly had regard to the “Employment History” section of the Applicant’s visa application. That is plainly a reference to the document starting at CB 89. At CB 90, the Applicant states that he worked as an air conditioner technician in Vavuniya from February 2012 to July 2012. Accordingly, read in context, the Authority’s reference to “between February and July 2012” must be a reference to February 2012 and July 2012.

   15.The Authority’s conclusion that the Applicant was not in hiding during the period from August 2010 (his release from detention) to October 2012 (his departure from Sri Lanka) was based on the Applicant working in Vavuniya for that 5-month period. That reasoning was open to the Authority, for the reasons it gave.

   16.Contrary to the Applicant’s submissions at AS [24], the 18-month period referred to by the Authority at [17] of its reasons did not refer to a period from February 2011 to July 2012. First, that is a period of 20 months. Secondly, the end date of July 2012 is some three months’ short of the period “prior to his departure” in October 2012. Thirdly, the 18-month period more closely aligns with the period that the Applicant was apparently in Vavuniya. At [15], the Authority found that the Applicant was living with a relative in Trincomalee “in early 2011” for “two or three months”. If the Applicant left Trincomalee for Vavuniya after three months in early 2011, he would arrive in Vavuniya in about April 2011. This then has the Applicant living in Vavuniya from about April 2011 to October 2012 – or 18 months.

   17.For these reasons, the Authority did not misunderstand the evidence. This ground should be dismissed.

9. This ground concerns paragraphs 15 to 17 of the Authority’s reasons for decision, which are as follows:

   15.When asked why he had left Sri Lanka in 2012 the applicant responded that it was due to his problems with the CID and that he didn’t know what was going to happen if they caught him for the third time. During the SHEV interview the delegate asked the applicant to describe his movements between his August 2010 detention and his departure from Sri Lanka in October 2012. The applicant responded that in the later part of 2010 he had stayed with relatives in Mannar district, in early 2011 he had spent two or three months with a relative in Trincomalee, and that he had then returned to Vavuniya. In the applicant’s written SHEV statement the applicant also claims that he was forced to continuously change his address as the CID were still looking for him during this period. It is plausible that following the May and August 2010 incidents with the CID the applicant felt it safer to spend some time away from Vavuniya and I accept this was the case until early 2011. However, under the ‘Employment History’ section of the applicant’s SHEV application he has indicated that between February and July 2012 he worked as an air conditioner technician for a business in Vavuniya and during the SHEV interview he confirmed that this was a full time position. Given this, I have difficulty accepting the applicant’s claims that he was in hiding during this period or constantly changing his address to avoid the CID who were looking for him. On the evidence before me I consider the CID could have found the applicant without difficult during this period if they were indeed looking for him as claimed.

   16.The applicant claims that following his October 2012 departure from Sri Lanka the CID visited his family home on a monthly basis to ask about his whereabouts. The applicant claims that in 2014 his father passed away from natural causes which meant that the applicant and his family can no longer rely on any protection from his father’s PLOTE connections. In his written SHEV statement, dated 22 October 2016, the applicant claimed that two weeks earlier the CID had interrogated his younger brother, believing him to be the applicant, and that this had made the family very worried for his brother’s family. At the May 2017 SHEV interview the applicant reiterated this, claiming that the CID had come to the family home and encountered his younger brother who was watching TV. The CID questioned the applicant’s brother as to who he was and it was only after his mother showed them his brother’s school ID card that they went away, after threatening to teach the applicant a lesson if they ever found him. The applicant advised the delegate that this was evidence that that he continues to have an adverse profile with the CID and one month ago (April 2017) they had sent his brother to study in India for his safety.

   17.I consider the applicant’s evidence in this regard to be unconvincing, at best. For the reasons already given, I find it difficult to accept that the CID in Vavuniya were unable to locate him for the eighteen months prior to his departure. Nor is there any credible reason as to why the CID would visit his family home on a monthly basis looking for him once he had left. During the SHEV interview the delegate put to the applicant that in 2015 parliamentary and presidential elections had taken place, which were for the most part peaceful, and that he was having difficulty understanding why the CID would maintain an ongoing interest in the applicant in relation to the 2010 elections. The applicant responded to the delegate’s concern in general terms, asserting that Sinhalese people are taking over Tamil areas and that the government does nothing to stop this.

10. On a fair reading, I consider that the Authority meant the following:

    (a)the applicant returned to Vavuniya in about April 2011, after spending two or three months with relatives in Trincomalee in early 2011;

    (b)he worked as an air conditioning technician in Vavuniya between February 2012 and July 2012 – this is the natural reading of “February to July 2012”, and was consistent with the applicant’s own evidence;

    (c)the Authority had difficulty accepting that the applicant was in hiding between February 2012 and July 2012, and the CID could have found him during February 2012 to July 2012 if they were looking for him;

    (d)the Authority had difficulty accepting that the CID would have been unable to locate the applicant during the eighteen months prior to his departure, that is, from April 2011 to October 2012.

1. It seems to me that the Authority extrapolated from the fact that the applicant was working in Vavuniya as an air conditioning technician, and not in hiding, from February 2012 to July 2012, to conclude that he was not in hiding in Vavuniya from April 2011 to October 2012. That conclusion was open to the Authority. If the applicant was not in hiding between February 2012 and July 2012, and the CID was visiting his family home monthly, it can be assumed that the CID would have found him between February 2012 and July 2012. The fact that they did not do so indicated that they were not looking for the applicant between February 2012 and July 2012, or, as the applicant claimed, between April 2011 and October 2012.

2. I do not accept that the Authority found that the applicant worked as an air conditioning technician for 18 months. I am not persuaded that the Authority misunderstood the evidence, or made a finding unsupported by the evidence. Ground 1 is not made out.

   GROUND 2

3. The second ground of review in the application is:

   The IAA wrongly relied on the Applicant’s appointment of Mr Pena-Rees as representative and authorised recipient when such appointment had been, spent, had otherwise ceased to be valid, or had become stale, by the time the matter was remitted to the IAA for reconsideration, resulting in a process of making a decision which was unreasonable.

   Particulars

   a.The appointment was spent because on the proper construction of s 473HG(1), the appointment was valid only until the IAA completed the review that was pending at the time of the appointment.

   b.Alternatively, the appointment was spent because on the proper construction of the instrument of appointment, the appointment was valid only until the IAA completed the review that was pending at the time of the appointment.

   c.Alternatively, the appointment ceased to be valid when Mr Pena-Rees ceased to be a registered migration agent.

   d.Alternatively, the appointment ceased to be valid when Mr Pena-Rees’ law practice became the subject of the appointment of a manager under the Legal Profession Uniform Law.

   e.Alternatively, the appointment was stale by effluxion of time and another firm having acted for the Applicant in connection with the review after Mr Pena-Rees.

   f.Alternatively, the appointment ceased on 11 May 2020, when Armour Legal Pty Ltd, the law practice of Mr Pena-Rees, went into administration;

   g.Alternatively, the appointment ceased on 16 June 2020, when Armour Legal Pty Ltd went into liquidation;

   h.Alternatively, the appointment had ceased by on or around 1 May 2020, when Mr Pena-Rees was no longer entitled to engage in legal practice.

4. The following facts were common ground. The applicant nominated Mr Pena-Rees of Armour Legal Pty Ltd on 18 September 2017 as his authorised recipient and authorised representative. The applicant did that by Mr Pena-Rees sending to the Authority a duly completed form F2. Mr Pena-Rees was a solicitor and a registered migration agent at that time.

5. On 12 March 2018, the Authority affirmed the delegate’s refusal to grant the applicant a protection visa. The applicant applied to this court for review of that decision. The applicant was represented for the purposes of that review by Victoria Legal Aid (“VLA”) from 17 December 2019 onwards.

6. The Department’s ICSE system shows that the applicant advised the Department that his postal address was Margoneet (the correct name is Marngoneet) Correctional Centre between 25 July 2019 and 16 November 2020.

7. On 23 March 2020, the Victorian Legal Services Board appointed a manager to the law practice of Mr Pena-Rees, and Armour Legal Pty Ltd, due to a trust money irregularity and failure to attend to the affairs of the legal practice. On 2 May 2020, Mr Pena-Lees’ registration as a migration agent expired.

8. On or around 1 May 2020, Mr Pena-Rees ceased to hold a practising certificate.

9. On 8 May 2020, this court quashed the Authority’s decision.

10. On 11 May 2020, Armour Legal Pty Ltd went into administration, and on 16 June 2020, it went into liquidation.

11. On 19 June 2020, the Authority sent an email to Mr Pena-Rees, with a courtesy copy to the applicant’s email address:

    (a)noting that the matter had been remitted for reconsideration;

    (b)asking the applicant to advise if he wished correspondence to be sent to someone other than Mr Pena-Rees; and

    (c)saying that the applicant could provide new information, subject to the enclosed practice direction.

12. The enclosed practice direction (dated 1 May 2020) specifically said:

    9.It is your responsibility to ensure that you give us a current email address and tell us immediately if your email address changes.

    Representatives

    10.You may engage a person to represent or assist you in relation to the review.

    …

    12.Your representative must also notify us in writing as soon as they commence or cease representing you.

    …

    15.If we are reconsidering your case following remittal by a court, the IAA will continue to correspond with your representative unless you tell us otherwise.  

    Authorised recipients

    16.You may appoint a person to receive correspondence on your behalf.

    17.If you appoint a person to receive your correspondence, we will send correspondence about your review to that person and not to you.

    18.To appoint a person to receive your correspondence, you must notify us in writing of the person’s name and contact details. 

    …

    21.If we are reconsidering your case following remittal by a court, the authorised recipient will continue to receive correspondence on your behalf unless you tell us otherwise.

13. The applicant did not receive the courtesy copy of that email, because he was in prison, and therefore unable to receive emails. There is no suggestion that Mr Pena-Rees received the copy addressed to him, because it was sent to [email protected]. Mr Pena-Rees was presumably unable to access the email, because, by then, Armour Legal Pty Ltd was in liquidation.

14. The applicant did not respond to the Authority’s email dated 19 June 2020. On 9 July 2020, the Authority, again, affirmed the delegate’s decision.

15. An earlier practice direction (dated February 2017), which the applicant would have received, did not contain paragraphs 15 and 21 set out above, but contained the other paragraphs set out above.

16. Section 473HG of the Act provides:

    (1)If:

    (a)a fast track reviewable decision in respect of a referred applicant is referred for review; and

    (b)the referred applicant gives the Immigration Assessment Authority written notice of the name and address of another person (the authorised recipient) authorised by the referred applicant to receive documents in connection with the review;

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

    (2)If the Immigration Assessment Authority gives a document to the authorised recipient, the Authority is taken to have given the document to the referred applicant. However, this does not prevent the Authority giving the referred applicant a copy of the document.

    (3)Subject to subsection (4), the referred 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 referred applicant’s authorised recipient.

    (4)In addition to the referred applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.

    (5)This section does not apply to the Immigration Assessment Authority giving documents to, or communicating with, the referred applicant when the referred applicant is appearing at an interview with the Authority.

17. The second page of the applicant’s “Appointment of Authorised Recipient/Appointment of Authorised Representative” form, in respect of Mr Pena-Rees, was omitted from the court book.  However, the relevant page, from an earlier appointment of an authorised recipient and authorised representative, was included at CB200 and is as follows:

    What is a representative?

    You may authorise a person to represent you and act on your behalf in relation to your case. This person is known as your representative. It is not necessary to nominate a representative - you may choose to deal with us directly. If you nominate a representative, he or she can communicate with us on your behalf and request access to documents held by us in relation to your case. You must inform us immediately, in writing, if you change your representative, cancel your representative’s authority to act on your behalf, or if your representative’s contact details change.

    With limited exceptions (such as if given by a close family member, a parliamentarian or a public servant in the course of their duties) immigration assistance can only be given by a registered migration agent.

    A person provides ‘immigration assistance’ when they use their knowledge or experience in migration procedure to assist in preparing, advising or representing a visa applicant.

    The website of the Office of the Migration Agents Registration Authority ( has information about finding and using a migration agent, including information in various languages. The website also allows you to check whether a migration agent is registered.

    What is an authorised recipient?

    You may choose to have all correspondence sent to yourself or you may nominate a person (known as an authorised recipient) to receive correspondence on your behalf in connection with the review.

    If you appoint a representative in relation to your case, we will assume you are authorising that person to receive correspondence/documents on your behalf in connection with your case.

    If you nominate an authorised recipient, we will send all correspondence to your authorised recipient.

    Only one person can be nominated as your authorised recipient. If you have an authorised recipient and nominate a new authorised recipient, we will send correspondence to your most recently nominated authorised recipient only.

    Generally, if an email address is provided for the authorised recipient, we will use that email address to send correspondence/documents to the authorised recipient.

    Information for migration agents

    Where the information in this form refers to a migration agent, the details of the representative/ authorised recipient and their registration are collected in relation to the Migration Agents and Immigration Assistance scheme under Part 3 of the Migration Act 1958 and will be provided to the Department of Immigration and Border Protection.

18. Anyone can be an authorised recipient, but only a migration agent (or a close family member, a parliamentarian, or a public servant in the course of their duties) can give immigration assistance, and thus be a representative. See Part 3 of the Act.

19. When the Authority sent Mr Pena-Rees the email dated 19 June 2020, the Authority expressly stated that the email was being sent to him as the applicant’s authorised recipient. Therefore, it was, strictly speaking, immaterial that Mr Pena-Rees by then had ceased to be registered as a migration agent. That is because he did not need to be a registered migration agent to be the applicant’s authorised recipient.

20. It was also, strictly speaking, immaterial that by 19 June 2020, Mr Pena-Rees was not permitted to engage in legal practice and his law firm had gone into liquidation. That is because the Authority did not send the email dated 19 June 2020 to Mr Pena-Rees in his capacity as the applicant’s authorised representative. 

21. The applicant argued that the appointment of Mr Pena-Rees as his authorised recipient was valid only until the Authority completed the review that was pending at the time of the appointment. The applicant said that review ended on 12 March 2018, when the Authority affirmed, for the first time, the delegate’s decision.

22. However, the decision of the Authority made on 18 March 2018 was quashed. It ceased to exist. Therefore, “the review that was pending at the time of the appointment” continued to be pending at least until the Authority made its second decision on 9 July 2020. Indeed, that review would continue to be pending if the Authority’s second decision were to be quashed.

23. The applicant argued that the appointment of Mr Pena-Rees as his authorised recipient had become stale. The applicant argued that was particularly so because the Authority had not received any correspondence from Mr Pena-Rees, despite him being the applicant’s representative, for three years meant that it was unreasonable for the Authority to have relied on the appointment of Mr Pena-Rees as his authorised recipient. 

24. However, there is no statutory basis for that submission. It is not correct. If we consider the reverse situation, where the Authority did not send a communication to an authorised recipient, because some years had passed, it is obvious that the Authority would be in error. As many of us are all too aware, the very large number of migration cases pending in this court means that often many years pass between a decision by the Authority and any remittal. It would not be fair to applicants in general for their previous appointments of authorised recipients to be deemed stale (without any statutory authority) after an unspecified period of time.

25. The applicant also argued that the appointment of Mr Pena-Rees as his authorised recipient had been overtaken by his appointment of VLA as his lawyer for the review in this court of the Authority’s first decision. However, the review in this court was an entirely separate matter from the review by the Authority. The appointment of VLA to act for the applicant in this court had no bearing on the appointment of Mr Pena-Rees as the applicant’s authorised recipient in proceeding in the Authority.

26. Fundamentally, it was open to the applicant at any time to have given a new notice of appointment of an authorised recipient to the Authority, or to simply have withdrawn the notice of appointment of an authorised recipient dated 18 September 2017. Indeed, it was his responsibility to do so. As Collier J observed in Khan v Minister for Immigration and Border Protection [2015] FCA 125 at [21], in relation to the analogous situation of the Migration Review Tribunal:

    … It was the responsibility of the applicant to ensure the currency of his contact details, at least with the Tribunal. …

27. I am not persuaded that there is any merit in ground 2.

    GROUND 3

28. The third ground of review in the application is:

    The IAA was disabled from performing its review because of the Secretary’s failure to comply with his obligation under par 473CB(1)(d) of the Act to provide the IAA with the Applicant’s residential address.

29. The Minister conceded that the Secretary had failed to provide the applicant’s residential address to the Authority. However, the Minister submitted that error was not material for a number of reasons.

30. The second reason offered by the Minister, but the one that seems to me to be determinative, is that the applicant had appointed an authorised recipient, such that any communication with the applicant was required by law to be sent to the authorised recipient and not to the applicant. The Authority sent correspondence to the applicant’s authorised recipient on 19 June 2020. The fact that the Authority also sent a courtesy copy to the applicant by email, which he could not receive because he was in prison, is immaterial, because the Authority was not obliged to send a copy of the letter to the applicant.

31. The Minister also noted that the Authority was not obliged, in the circumstances of this case, to send a letter to the applicant, or his authorised recipient, at all. This is not a case where the Authority was obliged to write to the applicant to bring certain matters to his attention, as a matter of procedural fairness. 

32. The Authority’s letter dated 19 June 2020 enclosed a copy of the practice direction dated 1 May 2020, and said that the applicant could provide new information and submissions subject to the limitations discussed in the practice direction. The letter did not add anything to the practice direction. The practice direction was publicly available. Moreover, the applicant had received, at the address of his authorised recipient, the earlier version of the practice direction, which was substantially the same as the one that the Authority sent on 19 June 2020. 

33. The applicant knew that his matter had been remitted to the Authority, because a solicitor from VLA told him it had been remitted: paragraph 10 of the affidavit affirmed by the applicant on 21 September 2021. The letter dated 19 June 2020 did not say anything that the applicant did not already know, or could have discovered from publicly available documents.

34. In these circumstances, it cannot be said that the error, in the Secretary not sending the Authority the applicant’s address, was material. Ground 3 is not made out.

    GROUND 4

35. The fourth ground of review in the application was withdrawn at the final hearing on 17 November 2021.

    CONCLUSION

36. As none of the applicant’s grounds has been made out, the application will be dismissed with costs.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Dated:       24 January 2022