MZYSZ v Minister for Immigration
[2012] FMCA 390
•23 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYSZ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 390 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – applicant not receiving letter of invitation to Tribunal hearing – whether this means Tribunal’s decision not a decision in law – matter subject of extensive authority – application dismissed. |
| Migration Act 1958 (Cth), ss.417, 422B, 425, 425A(2)(a), 441A, 441A(4), 441C, 441C(4), 494B(4)(c) |
| SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 Chidbundid v Minister for Immigration and Citizenship [2012] FMCA 59 Shah v Minister for Immigration and Citizenship [2011] FMCA 18 Bin Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 Sainju v Minister for Immigration and Citizenship [2010] FCA 461 Tay v Minister for Immigration and Citizenship [2010] FCAFC 23 |
| Applicant: | MZYSZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1746 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 19 April 2012 |
| Date of Last Submission: | 19 April 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Germov |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the First Respondent: | Ms Holt |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1746 of 2011
| MZYSZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The issues in this case can be shortly stated. The applicant says, and I accept, that she never received the invitation issued to her by the Refugee Review Tribunal (“Tribunal”) to attend the hearing that occurred on 23 November 2011.
The applicant submits that this failure occasioned considerable unfairness on her and led to the Tribunal purporting to exercise jurisdiction in circumstances where it should be held that the Tribunal had not in law properly done so at all.
While I fully accept that the outcome is very unfair, for the reasons that follow I do not think that there is anything I can do about it and the application must be dismissed.
The Facts
It should be noted that there were two applicants to the application before the Tribunal but as the matter has proceeded before me, I am concerned essentially only with the one applicant.
The applicant applied for a protection visa on 13 April 2011. A delegate of the first respondent decided to refuse to grant the visa on
23 June 2011 and notified the applicant of that decision. The delegate decided the matter on the basis that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention.
On 19 July 2011, the applicant applied to the Tribunal for review of the delegate's decision. The original application, the delegate's decision and the application to the Tribunal are of course in the Court Book (“CB”).
On 18 October 2011, the Tribunal posted by registered post to what is conceded to have been the applicant's then address, an invitation to the applicant to appear at a hearing before it on 23 November 2011. Inter alia the letter (CB159 to 160) stated:
“The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone.
You are invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in your case. The Tribunal has arranged a hearing for …” (and the letter went on to give the date, time and location of the proposed hearing).
The applicant has filed a number of affidavits as to the non-receipt of the registered letter by her. It is plain that much of the material is hearsay and inadmissible. Nonetheless, the affidavit of Sung Hoon Kim filed on 12 April 2012, in my view, makes it clear what has occurred.
Mr Kim is the manager at the Australia Post office in Redfern, New South Wales. On 30 November 2011, the applicant spoke with him at the Redfern post office. She had an inquiry because she said she had not received an important letter that had been sent by registered post to her.
Mr Kim sets out the usual process with registered post mail and noted that what occurs is that:
a)the registered post is collected from the mail sorting centre and delivered to the receiver's address;
b)if the receiver is not at home the person contracted to deliver it to the receiver leaves an awaiting collection card in the letter box which states where the receiver can collect it;
c)the contractor then leaves the registered post item at the nearest post office as marked on the awaiting collection card.
While the assertion attributed the applicant that she had not received the correspondence is plainly hearsay, Mr Kim, however, confirms that when this conversation took place (and the fact that it has taken place is not hearsay) he went to look for the registered post item she was speaking about and "in doing so, I found the letter which had been received by my Redfern Australia Post office".
Mr Kim asserts the contractor failed to leave an awaiting collection card at the (applicant's) postal address, and Mr Kim confirmed that the letter had been at the post office for a month and that the post office had omitted to send the final notice and return the letter after two weeks.
The affidavit went on to say:
“I confirm that when the Registered Post item (i.e. the letter that the applicant was enquiring about) had been unclaimed for one week, the Post Office should have sent a final notice to her. If upon issuing the final notice, the item had not been claimed within another week, then it is the Post Office's duty to return the item to the sender. As stated above, we (at the Post Office) failed to follow procedure and execute those two actions.
I confirm our above inactions resulted in (the applicant) not receiving the item that had been sent to her by Registered Post.”
Counsel for the first respondent submitted that the admissible evidence did not go far enough to prove that the applicant had not received the letter as a result of an omission or negligence by the contractor because the contractor him/herself had not been put on evidence. I note that there is admissible evidence before the Court that the contractor has not been able to be found.
In my view, counsel for the first respondent's criticisms are unsustainable. There is direct admissible evidence from Mr Kim that when the applicant went to see him and raised the question of where this registered post item was, it was in fact in the post office. There is direct admissible evidence that it had been there for a month. While Mr Kim does not say what it is that enables him to make this observation, the fact is he has made it on his oath and he is after all the person in charge of the post office.
It is overwhelmingly more probable than otherwise that matters are as he says, and the only inference one can draw is that for whatever reason, the registered post item (namely the invitation to the hearing) was never delivered to the applicant, nor was she otherwise given any notice of it.
The Submissions of the Applicant
The applicant submits that the Court should approach this state of affairs by reference to the observations of the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. In that case, which involved applicants who had not attended a hearing of the Tribunal as a result of fraud by their migration agent, the Court found at paragraph [7]:
“For the reasons that follow there was in this case fraud in the necessary sense which was perpetrated "on" the tribunal, as well as upon the appellants. The result was that, in law, the jurisdiction of the tribunal remained unexercised and mandamus and certiorari were appropriately ordered by the Federal Magistrates Court.”
At paragraph [48] the Court said:
“As indicated earlier in these reasons, the provisions of Pt 7 obliging the tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)) and empowering the tribunal to make a decision on the review in the absence of an appearance (s 426A) are of central importance for the legislative scheme laid out in Div 4 of Pt 7 (ss 422B-429A) for the conduct of reviews. By s 422B that Division provided that it is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule.”
At paragraphs [51]-[53] the Court continued:
“51. No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the tribunal.
52. The consequence is that the decision made by the tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. The authorities were collected in Bhardwaj.
53. The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the tribunal of reviews and the place therein of the
ss 425 and 426A. In the Full Court, French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.” (emphasis added).
Whilst counsel for the applicant freely conceded that SZFDE was a case concerned with fraud she submitted that, so to speak, the class of circumstances that would give rise to the outcome in SZFDE was not limited.
It was submitted that two decisions of the Federal Magistrates Court suggested that the Court will embark upon, in an appropriate case, an examination as to whether or not a person had in fact received material and it could be inferred that, if such a finding was then made, because of the failure to comply with the imperative obligation to invite the applicant to appear at a hearing, jurisdictional error would be revealed.
The two decisions to which counsel for the applicant referred the Court were Chidbundid v Minister for Immigration and Citizenship [2012] FMCA 59 and Shah v Minister for Immigration and Citizenship [2011] FMCA 18.
It is not necessary to refer in any detail to those two decisions, which I have read carefully. The fact is that in each case, the inquiry made by Cameron FM (in Shah) and Barnes FM (in Chidbundid) was not predicated on the proposition that actual non-receipt would vitiate the Tribunal's decision. The question in Shah was whether or not the relevant legislation and regulations led to a conclusion that a fax had not been received, and in Chidbundid the question was concerned with emails. In both cases, however, it is quite clear in my opinion that the Court was not embarking upon a finding as to whether or not the applicant had indeed received the fax or email but rather whether they could be taken to have received them based on a proper construction of the legislation and regulations governing the receipt of facsimile messages and emails respectively.
The other matter raised by counsel was whether the registered letter could have been taken to have been sent by the Tribunal in circumstances where Australia Post had simply never completed the transmission process.
This latter point in my view can be dealt with shortly. In Bin Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172, the Full Court of the Federal Court made it clear that sending a document by registered post was postal service within the meaning of the relevant legislation (see the judgment of the Full Court at paragraphs [15]-[17]).
The Minister's Submissions
The first respondent's written submissions concentrated on the fact that the judgment in SZFDE was wholly limited to circumstances of fraud on the Tribunal by a third party and stressed the absence of such a circumstance here.
It was also submitted that there was, in the circumstances, no denial of natural justice by the Tribunal, but in my view the outcome of this issue depends upon the view I take of the effect of the proven non-receipt by the applicant of the letter of invitation.
The Relevant Authorities
Unfortunately for the applicant there is all too much authority making it clear that actual non-receipt of a document like a letter of invitation is not, in the absence of fraud, a circumstance that gives rise to jurisdictional error.
I have not thus far considered the statutory scheme relevant to this application.
By s.422B it is asserted that Div 4 (of Pt 7) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
By s.425 it is provided that "the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review."
By s.425A(2)(a) it is provided that the notice that the Tribunal must send to an applicant be relevantly by "one of the methods specified in s.441A".
By s.441A(4) it is relevantly provided that:
“Dispatch by pre-paid post or by other pre-paid means Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a)within three working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by any other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review.”
It is apparent from SCB1 that the letter was dispatched on 18 October 2011, the date upon which it was dated. It was therefore clearly posted within three working days of being dated, it was clearly sent by post, and it was addressed to the last address for service provided to the Tribunal by the applicant.
By s.441C(4) it is provided that:
“If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document.”
As earlier indicated there is copious authority about the effect of these sort of deeming provisions. In SZFDE before the Full Court of Australia (Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142), French J (as his Honour then was) said at paragraph [126] and following:
“[126] The Tribunal sent an invitation to SZFDE under s 425 to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Such invitation having been sent out, the Tribunal accepted at face value the response that SZFDE and her family did not wish to appear. There was nothing in the conduct of the Tribunal in this respect that could be described as unfair.
[127] Nor was there anything in the conduct of the Minister or the Department in relation to the review that could be said to have infected it with procedural unfairness. And, although procedural unfairness may, as the authorities discussed earlier demonstrate, occur without fault on the part of the decision-maker, an applicant for review who acts upon bad advice not to attend a Tribunal hearing does not thereby render the Tribunal’s subsequent decision making unfair.
[128] Ultimately, however, this is not a case about unfairness. Rather, it is a case about the effect of fraud upon the Refugee Review Tribunal’s decision-making process for which the Parliament has provided in Pt 7 of the Act.
[129] There are sound policy reasons why a person, whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made. But where a person’s participation in a decision-making process is affected by the material dishonesty of another which conveys a false impression to the decision-maker, then that dishonesty may be said to have distorted or vitiated the approach and to have affected the decision.”
The question of what flows from actual non-receipt of a document in the context of deeming provisions, such as s.441C, was considered in Sainju v Minister for Immigration and Citizenship [2010] FCA 461 by Jacobson J. Although that case involved the provisions of the Migration Act dealing with migration review applications rather than those in refugee review proceedings such as this one, the Court's reasoning is clearly applicable. What Jacobson J said at paragraphs [51]-[56] was as follows:
“[51] What seems to me to be decisive is that each of the deeming provisions focuses upon the physical act of the Minister in giving the document to the person, rather than whether the document is actually received.
[52] The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred.
[53] Thus, when a document is handed to the person, it is assumed that the person will open the envelope and read it, regardless of whether he or she actually does. Also, when a document is handed to another person at the addressee’s residence or place of business, it is assumed that the other person will give it to the named person. So too, it is assumed that the postal system will work in the ordinary way and that the addressee will receive the document within the time stated.
[54] The same assumption is made in the deeming provision which deals with electronic communications. Thus, an email is taken to be received at the end of the day on which the Minister transmits, or sends it, to the addressee.
[55] It may be that in an unusual case there will be unfairness because the assumption which underlies the deeming provision is not fulfilled. The other person may not hand the document to the addressee, the postal system may produce inordinate delay or the email may be lost for a period of time in cyberspace. Perhaps the document will never find its way to the addressee.
[56] But the authorities dealing with deeming provisions in relation to non-electronic communications make it clear that the effect of those provisions is not to create a rebuttable presumption of fact. They are not to be read as if they were subject to a proviso that the person is not taken to have received the document if the contrary is proved: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (Xie) at [13]–[14] per Spender, Kiefel and Dowsett JJ; see also the review of the authorities by Sundberg J in Minister for Immigration and Citizenship v Abdul Manaf [2009] FCA 963 at [21]–[24]; and see Tay v Minister for Immigration and Citizenship [2010] FCAFC 23 at [16]–[19] per Dowsett, Stone and Bennett JJ.”
The passage to which his Honour referred in Bin Xie is as follows at paragraphs [13]-[14]:
“[13] On 1 October 2004, an officer of the Tribunal wrote to the solicitor, indicating that the application for review appeared to be out of time and inviting the appellant to provide any documents and submissions concerning that issue. On 9 December 2004 the Tribunal decided that the application was out of time. The appellant was advised of this decision under cover of a letter dated 10 December 2004. The appellant sought judicial review of the Tribunal’s decision, alleging jurisdictional error. The primary allegation raised in the application seems to have been that the relevant time limit for his application to the Tribunal was 28 days rather than 21. There was also a suggestion that any time limit should have been calculated from 1 September 2004. A perusal of the Magistrate’s reasons suggests that the appeal was conducted on those grounds. His Honour disposed of it for reasons which reflected the above analysis of the relevant provisions. The notice of appeal against the Magistrate’s decision raises similar grounds but also makes the erroneous assertion that he fell into jurisdictional error. In written submissions on appeal, counsel for the appellant submitted only that given the appellant’s claim that he had not received the notification until 1 September, the deeming provision contained in s 494C did not operate. That argument must fail. Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be ‘taken to have received the document … ’. Nothing in the section suggests that this is merely a rebuttable presumption. In Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77 the Full Court considered a similar, but not identical provision, then found in
s 53 of the Migration Act, but now repealed. It provided that in certain circumstances, an applicant was to be taken to have received a notification ‘even if it was not received’. At [17], O’Connor and Mansfield JJ observed:… the statutory provisions operated to deem notification of the decision of the delegate of the Minister, notwithstanding that the applicant may not have received actual notification of the relevant decision until some later time than that deemed by the Act and the Regulations or at all.
[14] The wording of s 494C is not quite so clear. Spender J, in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at [69], observed;
The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.
We agree. The sequence of statutory and regulatory provisions to which we have referred proscribes with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application.”
Here the terms of ss.441A and 441C are clear. The invitation letter was sent by the method contemplated by s.441A(4). Once that has happened s.441C provides that "the person is taken to have received the document if the document was dispatched from a place in Australia to an address in Australia - seven working days ... after the date of the document."
In my view, the fact that the deeming provision is brought into play by the sequence of events to which I have referred means that the applicant's perfectly reasonable criticisms of the unfairness of the process are of no moment.
In Tay v Minister for Immigration and Citizenship [2010] FCAFC 23 the Full Court of the Federal Court considered the terms of the particular sections of the legislation which arise in this case. At paragraph [15] the Court, in considering the decision in Bin Xie, made it clear that dispatch of the letter to the address given by the applicant by registered post was in accordance with s.494B(4)(c) and noted that the Full Court in Singh had accepted that this was a permitted method of notifying the applicant. At paragraph [19] the Full Court went on:
“[19] For reasons given below, we have concluded that the decision in Xie is not wrong nor does it produce unintended or irrational consequences. The construction of s 494C(4) in Xie and the consequent rigidity of time limits imposed on applications for review may seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received. In so far as is presently relevant, the provisions of s 494C(4) and s 494C(5) are identical and therefore the reasoning of the Full Court in Xie is equally applicable to both subsections.”
In circumstances where the Full Court of the Federal Court has on a number of occasions produced decisions that exactly reflect the facts in this case, it seems clear to me that I cannot uphold the applicant's submission. Bin Xie was deemed to have received the letter even though this plainly never occurred and accordingly the Tribunal's decision is not vitiated in the sense explained by French J in Bin Xie.
Conclusion
It follows that the applicant's application must be dismissed. Nonetheless, as I have already said in these Reasons for Judgment and indeed said during the hearing, this is not a result that I like. While the applicant might or might not have succeeded in persuading the Tribunal that the concerns that gave rise to the letter of invitation were met, the applicant was plainly prevented from exercising the right to appear at the Tribunal as s.425 envisages and which the High Court described as critically important in SZFDE.
Counsel for the first respondent referred to the various sections of the Act, including s.417, which give the Minister a non-reviewable authority to consider exemptions. This case would seem to me to be one in which it would be entirely appropriate for the Minister to exercise his discretion.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 23 May 2012
10
1