MZWNH v Minister for Immigration
[2006] FMCA 237
•21 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWNH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 237 |
| MIGRATION – Protection Visa – whether notice of hearing given – applicant absent from hearing – whether jurisdictional error – whether denial of procedural fairness – whether address details of department known to Tribunal relevant – whether Tribunal obliged to access departmental file for current address of applicant – failure of applicant to advise Tribunal change of address – misleading ‘checklist’ used by Tribunal officer. |
| Migration Act 1958, ss.417, 425, 425A, 426A(1), 441A, 441C, 441C(4) Migration Legislation Amendment Act 2001, sch.1, item 19 Migration Regulations 1994, reg.4.39 |
| VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 |
| Applicant: | MZWNH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 806 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 29 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 21 February 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr. P. Gray |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 22 June 2004 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 806 of 2004
| MZWNH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 December 2001, though handed down on 11 January 2002. The application was filed on 22 June 2004. The Applicant, who is unrepresented, has provided general grounds of the claim without any appropriate particulars and despite orders being made by a Registrar permitting the Applicant to file and serve an amended application with proper particulars. However, the key issue in this matter arises from the fact that the Tribunal proceeded to make its decision in the absence of the Applicant. It is claimed by the Respondent that the Applicant was given appropriate notice according to the requirements of the Migration Act 1958 (“the Act”).
By way of background it is noted that the Applicant, who is a citizen of Jordan, arrived in Australia lawfully on 10 November 1997. He applied for a protection visa on 5 October 1998. On 21 December 1998 a delegate of the First Respondent refused to grant the protection visa and sent the Applicant a decision record to that effect. From the Court Book it is evident that the correspondence from the Department of the First Respondent was forwarded to the Applicant at an address in Pier Street, Altona (“the Pier Street address”).
On 13 January 1999 Victorian Legal Aid (“VLA”) sent a facsimile transmission to the Tribunal, enclosing an application for review of the delegate's decision (Court Book 48A-52). Apparently, the application was not signed when received by the Tribunal on 13 January 1999 and telephone contact was made with VLA on 14 January 1999 and arrangements were made for the Applicant to sign a copy of the application held by the Tribunal on 15 January 1999.
Due to the change of address of the Applicant it is important to note in this chronology, where appropriate, the relevant address of the Applicant. In the application to the Tribunal the following relevant information appears:
·In SECTION B Item 8, next to the heading "Home Address", the Pier Street address has been inserted.
·In the same item, next to "Address for Service", the words "AS ABOVE" appear.
·In SECTION B Item 11, in answer to the question, "Do you have an adviser you authorise to act for you in relation to this application (for example a lawyer or a migration agent)?" the box marked "NO" has been ticked.
·In SECTION E of the application a number of Applicant's declarations appear which include the following:
“I undertake to inform the Refugee Review Tribunal of any changes to my personal circumstances (e.g. marital status, changes to the family composition) while my application is being considered. I understand that if I change my address and do not inform the Refugee Review Tribunal of my new address, a decision may be made in my absence.”
Acknowledgment of receipt of the application for review was provided to the Applicant by letter dated 15 January 1999 from the Tribunal (Court Book page 53). The address of the Tribunal in that document is referred to as Level 2, 628 Bourke Street, Melbourne, 3000. Apart from acknowledging receipt of the application, the following appears in a boxed section of the letter on page 2, reproduced below in bold print as it appears in the letter:
“It is very important to tell the Tribunal in writing if you change your telephone number, home address or your address for service (the address where you want letters from the Tribunal sent). If we are unable to contact you, or if you do not respond to our letters, you may lose your opportunity to appear before the Tribunal and give evidence on your case.”
On 20 April 1999 the Applicant applied for a bridging visa (Supplementary Court Book page 2). In that application, in Section 2 Item 8, the “Pier Street address” is inserted as the "residential address". In the same document, in Section 6 Item 32, in answer to the question, "To which address do you want correspondence sent?" an address of Beauchamp Street, Preston has been inserted (“the Beauchamp Street address”).
The next item of correspondence which is relevant is a letter dated
7 May 1999 from the First Respondent's Department to the Applicant, addressed to the “Beauchamp Street address”. That letter refers to the application for a bridging visa and deals with a request to vary the conditions of the visa to allow the Applicant to work. The letter which appears in the Supplementary Court Book has a stamp on it which provides as follows:
“RECEIVED
08 OCT 1999
Refugee Review Tribunal
Melbourne”
Hence, it is not disputed that a copy of that letter was apparently received by the Tribunal on 8 October 1999 which clearly provides a reference to the “Beauchamp Street address”.
In the Supplementary Court Book there is a letter dated 28 August 2002 from VLA to the First Respondent (Supplementary Court Book page 13). In that letter a request is made pursuant to s.417 of the Act to the Minister. The letter relevantly contains the following:
“(The Applicant), a Jordanian citizen, arrived in Australia November 1997 and applied for a Protection Visa in October 1998. The application was refused by the Department of Immigration on 21.12.1998, and (the Applicant) made an application for review was subsequently to the Tribunal on 13 January 1999. [sic]
Since that time, (the Applicant) has awaited notification of his hearing before the Tribunal. During this time, he has also changed his residential address on two occasions.
MONTH
YEAR
ADDRESS
From
Feb
1998
… Beauchamp Street, Preston
To
July
2001
From
July
2001
… Dundee Street, Reservoir”
It is evident from that letter dated 28 August 2002 that according to VLA the Applicant had changed address on two occasions so that he moved from the “Beauchamp Street address” to an address at Dundee Street, Reservoir (“the Dundee Street address”).
It is useful to pause at this stage to note and conclude that as at
28 August 2002, the Applicant through the VLA had advised the First Respondent that his residential address from February 1999 to July 2001 was the “Beauchamp Street address” and that from July 2001 his address was the “Dundee Street address”. It is also noted that, at least from the stamped mark appearing on the letter from the First Respondent's Department dated 7 May 1999, a copy of that letter was received by the Tribunal on 8 October 1999 and given that that letter is addressed to the Applicant care of the “Beauchamp Street address”, then it may at least be arguable that the Tribunal is deemed to have had knowledge of that “Beauchamp Street address” by virtue of receiving a copy of the letter on 8 October 1999.
Of course the change of residential address information provided by VLA only appears to be retrospective in the sense that it refers to the changes occurring from February 1998 to July 2001. Perhaps more significantly, however, the letter from the First named Respondent's Department to the Applicant at the “Beauchamp Street address” appears to have been in the possession of the Tribunal from 8 October 1999.
Despite having knowledge of the “Beauchamp Street address” the Tribunal by letter dated 27 September 2001, forwarded to the Applicant an invitation to attend a hearing of the Tribunal on 4 December 2001. The invitation is sent to the Applicant care of the “Pier Street address”. Despite the fact that the application for review had been lodged on
13 January 1999, there does not appear to have been any action taken for review after acknowledgment of the application by letter dated
15 January 1999, sent to the Applicant care of the “Pier Street address” referred to earlier in this judgment and 27 September 2001 when the invitation is forwarded to the Applicant to attend a hearing, with that invitation being addressed also to the “Pier Street address”.
Hence over two and a half years have elapsed between the date of acknowledgment of the application for review and the invitation being forwarded to the Applicant, and during that time, at the very least I am prepared to accept the correspondence addressed to the First Respondent dated 7 May 1999 had been received by the Tribunal on
8 October 1999. Perhaps not surprisingly, the Tribunal letter dated
27 September 2001, forwarded to the Applicant care of the “Pier Street address” was returned to the Tribunal on 1 October 2001, marked "return to sender" and the box "left address" has been ticked.
A further document appears in the Supplementary Court Book (page 12) entitled, "No reply to hearing invitation, s.424 or s.424A letter." The document has a subheading "Checklist." It refers to the Applicant and then a number of boxes on that checklist are ticked. In fact all of the following are ticked, and they appear as follows:
“Invitation sent to address for service recorded on Case Management System
Invitation sent to residential address recorded on Case Management System
Contacted adviser for more recent address (& record placed on file)
Copy of invitation sent to current adviser (at correct address), if applicable
RRT File checked for more recent address
Applicant telephoned, if applicable (& record placed on file)
DIMA file/s checked for more recent address and telephone number
Movement Database check done (& attached to file)
Checked with DIMA for more recent address and telephone number (& record placed on file).”
That checklist appearing on the document dated 1 October 2001 appears to be signed by a person who I assume to be an officer. There are a number of observations which can be made about the checklist. First, the third of the boxes which refers to contacting the adviser has a handwritten notation next to it which reads "No adviser." The next box which refers to "copy of invitation sent to current adviser (at correct address) if applicable" is ticked.
The box which refers to the Applicant being telephoned has a handwritten notation in the left-hand margin which reads, "No answer." In the right-hand margin there is the word "home" and a number inserted and then the date "01/10/01." Otherwise, the boxes are all ticked. That means that the officer, in completing this checklist, has ticked the boxes which refer specifically to a check being made of the "RRT file" for "more recent address" and further that "DIMA file/s checked for more recent address and telephone number" and "Checked with DIMA for more recent address and telephone number (and record placed on file)."
The tick in those boxes would lead one to conclude that the Tribunal has access to DIMA and as a practice, according to this checklist, would check those files for more recent addresses and telephone numbers and that the officer indeed did so. If that had occurred on
1 October 2001, then it is clear that the copy letter dated 7 May 1999 from the First named Respondent's Department to the Applicant, received by the Tribunal according to date stamp on 8 October 1999 revealing the “Beauchamp Street address” would have been discovered and I conclude, ought to have been discovered and the officer completing the checklist would have recorded the “Beauchamp Street address” on 1 October 2001.
Curiously then, the Tribunal forwarded a letter dated 20 December 2001 to the Applicant advising that a decision has been made to refuse his protection visa. That letter is forwarded to the Applicant care of the “Pier Street address”. Again, not surprisingly, the letter is returned to sender and received by the Tribunal on 27 December 2001.
The Tribunal handed down its decision on 11 January 2002.
As indicated earlier, it is after that date that the VLA sent its letter dated 28 August 2002 to the First named Respondent, which amongst other things advises of the change of address from the “Beauchamp Street address” to the “Dundee Street address”. No reference is made to the “Pier Street address”. The decision of the Tribunal was purportedly forwarded to the Applicant by letter dated 11 January 2002, again addressed to the Applicant care of the “Pier Street address”.
The RRT Decision
The crucial issue in this case is of course the question of the whether the Tribunal had complied with the requirements to forward an invitation to the Applicant. As it proceeded to make a decision on the review without holding a hearing, in its decision the Tribunal relevantly states the following:
“It is not for the Tribunal to make the Applicant's case for him. His original statement of claims asserts but does not detail his circumstances in Jordan. These assertions are insufficient for the Tribunal to be satisfied that he is a person in need of protection. He has failed to maintain a link with the Tribunal and so no oral or further written evidence has been given to this body. Where it has been possible to check his account, as in his claimed membership of the Ba'ath Party, it has not been possible to sustain a case of political persecution. …”
The First Respondent quite properly submitted that it is not possible to conclude that had the Applicant attended a hearing before the Tribunal the outcome of the review would have been unaffected.
The Applicant's Affidavit
In an affidavit sworn 26 April 2005, the Applicant relevantly states the following:
“1 I make this affidavit in support of my application for judicial review presently being considered by this Honourable Court in matter MZ806 of 2004.
2 I state that I have updated my addresses with the Respondent’s Department and the Refugee Review Tribunal should have been on notice about this. I also state that in general whenever I have had to provide information to the Department of Immigration
I would attend their offices in person at 2 Lonsdale Street, Melbourne, Level 10, being the office of Onshore Protection Victoria.
3 When I first applied to the Refugee Review Tribunal on 15 January 1999, my address was … Pier Street, Altona in the State of Victoria, and this was address provided on my RRT application form.
4 In February 1999, I changed address to … Beauchamp Street, Preston. As I remember, I reported this address change to the Melbourne office of the Department of Immigration at 2 Lonsdale Street, Melbourne, by attendance in person.
5 On 20 April 1999 I made application to the Department of Immigration for change of conditions to my Bridging visa to allow me permission to work. Again, I personally delivered this application form to Level 10 of 2 Lonsdale Street. This document reproduced as item 2 of my Supplementary Court book. On this form, I noted my address for correspondence as being … Beauchamp Street, Preston. I acknowledge that on this form my old address is listed at question 8 as my residential address, however with my limited English at the time I understood that my putting my new address as address for correspondence at question 32 I was letting the Australian government bodies know where I was and where to send me correspondence from now on.
6 On 7 May 1999, the Department of Immigration wrote to me at my residential address in Preston advising me that I was unable to obtain permission to work. This document reproduced as item 3 of my Supplementary Court book. I note that this document obtained from solicitors for the Respondent shows that it has a stamp showing receipt by the Refugee Review Tribunal on 8 October 1999.
7 In July 2001 I changed address to … Dundee Street Reservoir. Again, I recall that I personally attended the Department’s office at 2 Lonsdale Street, Melbourne to advise of this. In addition, I arranged through Australia Post for a re-direction of my mail for a lengthy period, certainly longer than 3 months.
8 From the above, it is apparent to me that the Tribunal from 8 October 1999 were on notice that my address had changed and that their invitation to me to attend hearing dated 27 September 2001 (reproduced as item 4 of my Supplementary Court book) was sent to the incorrect address at Altona, given the Tribunal on 8 October 1999 received from the Department the document reproduced as item 2 of my Supplementary Court book.
9 Accordingly I believe that I have been denied procedural fairness as I was not given proper invitation to a hearing, and I request that the Court make orders in my application that the Tribunal decision be set aside on the basis and the Tribunal be compelled to consider my application afresh.”
Due to the late arrival of the Applicant, the interpreter had left the Court. The Applicant was able to make oral submissions in clear terms and a careful reading of the transcript reveals that he understood and gave appropriate responses to the issues raised. Indeed, I concluded then that the Applicant had a good command of English, and knew precisely the issues to be addressed in the application concerning the lack of invitation to the hearing. So much is also evident from the fact that the affidavit relied upon by the Applicant, though prepared by another, did not provide in the particulars of jurat any reference to an interpretation being required. The Applicant indicated to the Court that he clearly understood the contents of that affidavit.
I should also note that during the course of the hearing I advised the Applicant that if he did not understand anything that had been put, he would have a chance to provide a written reply and if necessary seek the assistance of an interpreter in making further written submissions. As it happened, before the case concluded the Court was able to arrange for the return of the interpreter who had been excused when the Applicant had not arrived at the scheduled commencement of the hearing. Hence there was no need for any further delay in the matter, and I should add in any event that at the time of the hearing and since having read the transcript, I am strengthened in the conclusion that the Applicant in any event by his responses had a clear understanding of the proceedings. The interpreter returned before the hearing concluded.
The first respondent’s submissions
The First Respondent submitted that there is no need to further test the evidence in this matter and that the crucial issue for determination by the Court is whether the Tribunal was entitled to proceed to make a decision in the review without holding a hearing. It was argued that the Tribunal was required to invite the Applicant to appear before it pursuant to s.425 of the Act and the manner in which the evidence was to be given is set out in s.425A of the Act. (See VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134) where at paragraph 14 the Court states the following:
“The claim put to the primary judge and repeated before us that the methods specified in s.441A by which a document may be given to a person do not apply to an invitation given under s.425 must be rejected. Section 441A applies only when a provision requires or permits the Tribunal to give a document to a person and states that it must do so by one of the methods specified in the section. Section 425A so states. Section 425 does not. It is, however, plain that the sections are to be read together. Section 425 merely requires the Tribunal to invite an applicant to appear. It contains no mechanism by which the invitation is to be extended. That is done in s.425A. If the Tribunal invites the applicant to appear, it must be done in the manner there set out, namely by notice specifying the date, time and place at which the applicant is to appear. That this is the proper construction of the provisions is established by decisions at first instance, with which we agree. See QAAB v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 120 at [13] per Cooper J, SAAA v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 101 at [8] per Mansfield J, Mohammad v Minister for Immigration and Multicultural and Indigenous Affairs[2000] FCA 466 at [17] per Katz J and NAOZ v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 820 at [19] per Sackville J (NAOZ). It would be absurd to treat Parliament as intending by s 425 that by some unstated means the Tribunal is to issue an invitation to appear before the Tribunal, and by s 425A that it is to dispatch a notice containing details of the date, time and place for the appearance, but not containing the invitation itself.”
It was submitted that in this instance, provided the Tribunal complied with s.425A by giving the Applicant "notice of the day on which and the time and place at which the Applicant is scheduled to appear" by "one of the methods specified in s.441A" of the Act, then the Tribunal was empowered to proceed to make a decision the review under s.426A(1) of the Act (see VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 at [9]).
It was argued the question in this case is whether the notice sent by the Tribunal on 27 September 2001 to the Applicant care of the “Pier Street address” inviting the Applicant to a hearing on 4 December 2001 constituted a notice, for the purpose of s.425A, sent by one of the methods specified in s.441A. It was argued the notice dated
27 September 2001 complies with the content requirements of s.425A. For present purposes, I have no hesitation accepting that submission concerning the content requirements of the notice.
Reliance was placed upon s.441A of the Act which relevantly provides as follows:
“Dispatch by prepaid or by other prepaid means
(4)Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatch it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c)to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.”
It was noted that that section was added to the Act by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001, schedule 1, item 19, which commenced operation on 10 August 2001. It was argued that at the time of dispatch of the notice within three working days of 27 September 2001, both "the last address for service provided to the Tribunal by the recipient in connection with the review" and "the last residential address provided to the Tribunal by the recipient in connection with the review" was the “Pier Street address”.
It is argued and I accept that the notice dated 27 September 2001 is taken to have been received pursuant to s.441C, seven working days after the date of the document, provided it was dispatched within three working days.
It was argued that it is clear from the stamp "return to sender" which contains with it a handwritten date "28/9/01", that the notice dated
27 September 2001 was sent within three working days of its date. It was in fact argued the letter must have been dispatched on
27 September 2001, and for present purposes I have allowed both parties to rely upon date stamps which appear on the relevant documents, including the date stamp referred to earlier of 8 October 1999 indicating the copy of the letter from the First Respondent's Department to the Applicant to the “Beauchamp Street address”, dated 7 May 1999, was received by the Tribunal on that October date.
In any event the First Respondent submitted that the fact that the notice dated 27 September 2001 was received back by the Tribunal on
1 October 2001 has no effect on the passage of the period prescribed by s.441C(4). Accordingly, it was argued that the notice dated
27 September 2001 was given in compliance with ss.425, 425A and 441A of the Act, with the result that the Tribunal was authorised under s.426A to decide the review without holding a hearing and accordingly there is no jurisidictional error.
During the course of the hearing, after referring to the legislative provisions, counsel for the First Respondent made further reference to the regulations. In particular, reference was made to reg.4.39 of the Migration Regulations 1994 which provides as follows:
“MIGRATION REGULATIONS 1994 - REG 4.39
Address for service
(1) In this regulation:
lodge an address for service, in relation to an applicant for review, means give the Tribunal notice in writing of an address at which documents relating to a review may be sent to the applicant.
(2) An applicant for review may:
(a) lodge an address for service in a review; and
(b) at any time after lodging an address for service, lodge a new address for service in that review.
(3) If an applicant for review lodges with the Tribunal a new address for service under paragraph (2) (b):
(a) that new address becomes the applicant for review's address for service in the review; and
(b) he or she must, immediately after doing so, serve on the Minister a notice of that new address for service.
(4) An address for service may be, but need not be, the applicant's residential address.”
I noted during the course of submissions that that regulation not only provides an opportunity for an Applicant for review to lodge with the Tribunal a new address for service which may, although does not need to be the residential address of the Applicant but must also "immediately after doing so" serve on the Minister a notice of that new address for service.
Effectively, it was argued on behalf of the First Respondent that failure to provide notice to the Tribunal care of the address at “Bourke Street” referred to earlier in this judgment is sufficient to constitute a breach of the obligations under reg.4.39. Notification of the Minister does not, as I understand the submission, satisfy the requirement to notify the Tribunal separately. It was conceded that the submission is based upon the view that the Tribunal is independent and is entitled to be notified separately.
During the course of submissions, whilst it was noted that the warning to the Applicant in the correspondence from the Tribunal refers to a requirement to notify it "in writing" of a change of address, the requirement for the notice to be in writing did not appear in the regulation, though one would infer that lodging a new address would require a written document.
The First Respondent submitted that the authorities require strict compliance and informing the Department or the Minister is not to be taken as sufficient notice to the Tribunal, and nor would it appear to matter whether the Applicant made an honest mistake in assuming that by notifying the Department, that would provide effective notice to the Tribunal.
It was fairly and readily conceded that this is not a case of the Applicant trying to withhold his current address from the Department. It also appears to be conceded that there is no prescribed form to be lodged by an Applicant with the Tribunal providing notice of change of address. It does appear from correspondence in the Court Book (page 41) that the Department has a form referred to as a "form 929 client change of address" claimed to be available at any office of the Department. The Court is not aware of any other form which might be used for the Tribunal.
Ultimately, it was argued that due to the lack of notice the “Pier Street address” was the correct address for the purpose of s.441 of the Act and any other address provided to the Department, including the address concerning the bridging visa, does not assist the Applicant as it is not an address provided in connection with the review by the Tribunal of the decision to refuse a protection visa.
One point that emerged during the submissions is that the application for the bridging visa referred to the “Pier Street address” as the residential address whilst providing as an address for correspondence the “Beauchamp Street address”. Hence it was argued that there is a degree of consistency in the residential address at the relevant time and no documents indicate the residential address changed up to and including 27 September 2001 when the invitation to attend the hearing was sent.
Whilst fairly conceding that as at 8 October 1999 the “Beauchamp Street address” would have been known to the Tribunal, it was argued that in the circumstances the Tribunal is not obliged to use that address or to necessarily assume that that has become the residential address of the Applicant.
The applicant's submissions
The Applicant, who ultimately had the assistance of an interpreter, clearly had a good grasp of the issues which he had also referred to in his affidavit. He relied upon the affidavit and, as I understood it, effectively acknowledged that he had made an error by simply notifying the Department and assuming it was the same as dealing with the Tribunal when he advised of a change of address for correspondence. He referred to it as realising he had made a "big mistake" though sought to argue that there was a shared responsibility between him and the Department.
He sought to argue there was a responsibility on the Tribunal to advise him as to the difference between residential address and correspondence address and noted the Department was able to forward correspondence to a correspondent's address whilst the Tribunal acted differently. He claimed to have only found out about the decision some five months after it was made after a discussion with a friend.
Reasoning
Having considered the documentation carefully and the applicable legislation, in my view, the submissions on behalf of the First Respondent are correct. On the material before me I am prepared to conclude, even putting the Applicant's evidence at its highest, that at no stage did he advise as he was required to do the Tribunal of any change of address.
The Tribunal was entitled to have regard to the address which it believed to be the current address of the Applicant, notwithstanding the fact that it clearly had in its possession an alternative address for correspondence which it had obtained from the Department.
It is also a matter of some regret that the checklist referred to earlier in this judgment contains either errors or at the very least misleading information as the boxes ticked by the officer did not result in any alteration to the address to which the correspondence was forwarded. Had the true current address of the Applicant been ascertained by communication with the Department, which apparently is open to the Tribunal given the checklist items, then the Applicant in this instance, in my view, would no doubt have been provided with the invitation, addressed at the very least to the alternative address for correspondence in the possession of the Department.
However, even if I were to be satisfied that the Departmental officer had not made proper inquiries, the statutory scheme does not contemplate shifting the onus to the Tribunal or its officer to make relevant inquires of the Department to determine the current address of the Applicant, although in a practical sense it is difficult to see why that obligation should not be imposed given the ready access the Tribunal appears to have to Departmental files and records of addresses for correspondence.
Nevertheless, I accept the statutory scheme provides that the Tribunal was entitled to rely upon what appears to be the residential address of the Applicant and, in the absence of any notice of change of that address to the Tribunal, has otherwise discharged its statutory obligations by providing an invitation to the Applicant, albeit one sent to what now is evidently his former residential address.
It follows for the reasons given that there does not appear to be any jurisdictional error and that the application regrettably should be dismissed. I indicate "regrettably" because from a practical point of view it is unfortunate that at the very least the alternative address for correspondence clearly in the possession of the Tribunal, obtained from a copy of a correspondence addressed by the Applicant to the Tribunal, was not used or thought to be used and yet the checklist itself clearly contemplates further inquiries would normally be made by a Tribunal officer. I suspect that the inquiries were not properly made even though the boxes on the checklist were ticked. The unfortunate and dramatic consequence for this Applicant is that he has been denied the opportunity of being heard and the invitation to attend a hearing would appear to have been a somewhat meaningless gesture though not sufficient to constitute an error of law.
It is unfortunate that where there are clearly arrangements in place for the exchange of information between the Department and the Tribunal that an Applicant notifying the Department of a change of address cannot at the same time automatically notify the Tribunal. If that facility had been in place then the Applicant would not have been denied a hearing. It was clear on the material before me that the invitation sent by the Tribunal to the address then known by the Tribunal would not reach the Applicant and if proper enquiries were made by the Tribunal it would have determined that it was futile forwarding the invitation to the address on its file. It also noteworthy that the Tribunal unlike the Department does not have a prescribed form which would make it easier for Applicants to notify the Tribunal of a change of address. If the statutory scheme did not apply and if the Court was simply dealing with service of Court documents then it is unlikely that the First Respondent as a model litigant would even consider taking this technical point. Unfortunately, as indicated the statutory scheme as a matter of law in my view does not provide for any outcome other than dismissal of the application.
I accept the submissions made for and on behalf of the First Respondent that there is no jurisdictional error and that the application should be dismissed with costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 21 February 2006
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