Rahman, Mohammed Shaifur v Minister for Immigration and Multicultural Affairs

[1998] FCA 705

FEDERAL COURT OF AUSTRALIA

MIGRATION LAW - Power of Refugee Review Tribunal to determine application for review of delegate’s decision refusing the grant of a protection visa - Whether appeal to Tribunal lodged within time - Whether notification of decision was sent to applicant’s last notified residential address - Whether notification should have been sent to postal address of applicant.

Migration Act 1958, ss 53 and 476
Migration Regulations, reg 2.16

MOHAMMED SHAIFUR RAHMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG126 of 1998

JUDGE:         WILCOX J
PLACE:         SYDNEY
DATE:           9 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG126  of   1998

BETWEEN:	MOHAMMED SHAIFUR RAHMAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	9 JUNE 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal be set aside.

1. The matter be remitted to the Tribunal to be heard and determined according to law.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG126 of 1998

BETWEEN:	MOHAMMED SHAIFUR RAHMAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	9 JUNE 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:  The applicant, Mohammed Shaifur Rahman, claims to be a refugee.  He has applied for the issue to him of a protection visa.  I have no opinion whatever about the questions whether he is a refugee within the meaning of the Convention on the Protection of Refugees or entitled to a protection visa.  These are not issues in this proceeding.  But it is apparent that the handling of his application has been deficient; both at Departmental level and by the Refugee Review Tribunal, whose decision is challenged in this proceeding. 

The files of both the Department of Immigration and Multicultural Affairs and the Tribunal are in evidence.  It appears Mr Rahman made his application in February 1996.  At that time he gave, as his current residential address in Australia, the address “89A Reservoir Street, Surry Hills, New South Wales 2010”.  He said he had been living there since October 1995.   At about the same time, he gave his postal address as PO Box 1519, Darlinghurst.

On 1 April 1996 Mr Rahman wrote a letter to the Department responding to a letter of 6 March seeking further information.  He dealt with that request and at the end of the letter wrote, "Please note that my postal address has been changed and the new postal address is shown above the letter.  Thanks."  The new postal address that was shown above the letter was PO Box 198, Darlinghurst. 

In the second week of April 1996, Mr Rahman changed his residential address.  This fact was attested to by Mr Rahman in an affidavit and under cross-examination before me today.  He moved to flat 4/92 Abercrombie Street, Chippendale.  His evidence in that regard is corroborated by Mohammed Bazlur Rahman who is the occupant of the flat and deposes to meeting the applicant, Mohammed Shaifur Rahman, in March 1996 at the Surry Hills mosque.  Mr Mohammed Bazlur Rahman says he subsequently invited the applicant to share his flat; the applicant moved into the flat in about the second week of April 1996 and has continued to reside there with him ever since. 

The applicant, Mohammed Shaifur Rahman, gave evidence that, within about a week of moving, he went to the Department and, in particular, to the Onshore Protection office.  He spoke to the receptionist at the counter and obtained a form of Change of Address in which he filled in the details of his new residential address as 4/92 Abercrombie Street, Chippendale.  He says that, due to his limited English, the rest of the form was filled in by the receptionist.  He then signed the form and left it with the officer. 

Mr Rahman also says that, on 17 May 1996, he again went to the Onshore Protection Office and there completed a second form, again with the assistance of a receptionist.  This form, although not the earlier one, is in the Departmental file.  It is form 929 and bears a receipt stamp dated 17 May, 1996.  The form is headed "Client Change of Address".  It identifies the applicant, Mohammed Shaifur Rahman, by name and reference number.  Against item 3, “New residential address” is written the words "No change".  Similarly, against item 4 which is “Telephone number”.  Item 6 is headed "Postal address of person nominated to receive mail on behalf of the applicant".  Against this is written:  "PO Box 198, Darlinghurst NSW 2010".  In the space opposite item 7, "Residential address last provided", is written, in the handwriting of the Departmental officer, "Applicant has already notified in writing, but system was not changed".  The form is signed by the applicant.  In a box marked "Office use only", there is a report of an officer identified as “J M Moore”, indicating the system was updated on 17 May 1996.

Mr Rahman's evidence is that, when he was completing the form, the officer asked him about his residential address.  He mentioned he had recently notified a change of residential address and asked the officer whether the change had been noted.  He said the officer checked the file and confirmed he had advised the Department about his change of residential address but said the change had not yet been incorporated into the computer system.  He said it was only a matter of time before this was done.  Mr Rahman accepted this assurance.

I am uncertain whether the notation by the officer against item 7 on the form refers to the conversation as deposed to by the applicant - that is, it was a reference to the notification of the residential address - or whether it is a reference to the fact that the change of post office box number had already been notified in writing, that is on 1 April.  The endorsement is consistent with either possibility.  There may be some significance in the fact that the endorsement was written against item 7, which is concerned with provision of a residential address.  On the other hand, this space might merely have been a convenient place on the form in which to make a note about the postal address.

I have heard Mr Rahman give evidence about this alleged conversation.  I was impressed with him as a witness and I see no reason to disbelieve his statement that he notified his change of residential address.  Even if I came to a contrary conclusion, for reasons I will state, I would be of the opinion it does not affect the outcome of the case.

To continue with the narrative, Mr Rahman retained the services of a solicitor, John Sarroff  of John Sarroff and Company, level 5, 64 Castlereagh Street, Sydney.  The addresses Mr Sarroff noted when he took instructions, apparently some time in 1996, were PO Box 198 Darlinghurst and 4/92 Abercrombie Street, Chippendale.  Mr Sarroff contacted the Department concerning an interview in support of Mr Rahman’s application.  The Departmental officer then handling the case was Gerry Heyen of On Shore Refugee Operations.  Mr Heyen wrote to Mr Rahman, at PO Box 198 Darlinghurst, on 15 November 1996 making an appointment for an interview on 18 December 1996.  This date was inconvenient to Mr Sarroff, who requested a change of appointment.  Mr Sarroff made this request in a letter dated 9 December 1998 in which he enclosed Mr Rahman's "authority for us to act for him in this matter".  Mr Greg Peek, for the Minister, submits this reference, in effect, countermanded the notification of postal address previously given.

Following the letter from Mr Sarroff, Mr Heyen appointed a fresh date for the interview, 21 January 1997.  However, Mr Heyen cancelled this appointment, apparently because he was sent on duty to Port Hedland.  Subsequently, a third appointment was made, for 20 March 1997.  Mr Sarroff was ill in early 1997 and he says his recollection of the case at that time is not good.  Apparently, he does not remember anything about this appointment.  However it appears from a memorandum written by Mr Heyen to Anita Goswami of OP Team 3, within the Department, that Mr Heyen cancelled the March appointment also, because he became ill. 

In the memorandum to Ms Goswami, Mr Heyen referred to his current workload and expressed the hope that "The Bangladesh Country Project could take over these cases” - that is, the subject case and one other - “to allow me more time to move as it were".  Apparently, this request was acceded to.  The case was referred to an officer named Renee Young.  Despite the fact it had been intended there be an interview, and appointments had been made but cancelled, Ms Young decided to determine the application without an interview.  Moreover, she did so without notifying either Mr Rahman or Mr Sarroff of her intention to take that course.  Ms Young’s decision not to grant an interview may not have involved a contravention of any regulation.  However, it seems unsatisfactory that an applicant for refugee status should have been led to believe he would be afforded the opportunity of an oral interview, that two appointments for that purpose that were acceptable to him and his solicitor should have been cancelled because of problems within the Department, and the applicant should then find his application is determined adversely to his interests without his being afforded the opportunity of an interview.

Be that as it may, the application was determined by Ms Young on 30 May 1997.  On that same day, a letter notifying the decision was despatched, addressed to Mr Rahman at his old residential address, 89A Reservoir Street, Surry Hills, 2010.  This was neither the residential address he said he notified to the Department in April 1996 nor the postal address he incontestably notified on 17 May 1996.

A registered post lodgment record of the Department, that was tendered in evidence by Mr Peek, sets out the addressees of registered letters despatched on 30 May 1997.  It includes Mr Rahman's name and the address, 89A Reservoir Street, Surry Hills, and also the name John Sarroff, 67 Castlereagh Street, Sydney.  It is therefore possible that a copy of the decision was sent to Mr Sarroff on that day.  Mr Sarroff says he has no recollection of receiving the document but mentions his illness and says he could not be sure it did not arrive at his office.  Whether or not it did, Mr Sarroff apparently remained unaware of the fact that Mr Rahman’s application had been determined until Mr Rahman contacted him in July.

On 8 July 1997 Mr Rahman received a letter from the Department addressed to PO Box 1519, Darlinghurst - that is, his old post office box number.  The letter was apparently passed on to him by the person who then used the box.  An Australia Post sticker on the letter bears the date 3 July 1997, which suggests the letter was in the postal system in July.  It is surprising this old address was used, given the change of post office box that had occurred in May 1996 and the subsequent use of the new post office box number by the Department.  However, it is clearly the fact Mr Rahman was alarmed at receiving a letter addressed to his superseded post office box number.  He thought it indicated the Department was not very good at updating its records and was concerned he might not learn of action taken by the Department that was adverse to him.  Accordingly, on 8 July, immediately after receiving the misdirected letter, he telephoned the Department.  He spoke to an officer who told him there had been some action on his file, but he was unable to give him the detail.   During that conversation, Mr Rahman was again asked about his addresses and he gave his home address as 4/92 Abercrombie Street, Chippendale and his postal address as PO Box 198,  Darlinghurst.  The officer noted the fact of the conversation and these two addresses in handwriting on a computer printout, dated that day, on which Mr Rahman’s residential address is shown as 89A Reservoir Street, Surry Hills and his postal address as PO Box 1519, Darlinghurst.

Mr Rahman was concerned about the situation so he spoke to Mr Sarroff.  Mr Sarroff contacted the Department and learned a decision had been made.  The Department faxed to him a copy of Ms Young's decision.  Mr Sarroff informed Mr Rahman about the decision.  This was Mr Rahman’s first knowledge that a decision had been made and it was Mr Sarroff’s first conscious awareness about that matter.  The copy of the decision was faxed on 9 July.  On that same day Mr Rahman lodged an application with the Refugee Review Tribunal seeking review of the decision.

The Department’s file shows the letter enclosing a copy of the decision that was despatched to 89A Reservoir Street, Surry Hills was returned unclaimed to the Department on 7 July.

Mr Rahman makes the point that the fact that, on 8 July 1997, the Department’s computer records still showed the old post office box indicates the Department's record keeping was flawed; consequently, the fact the computer still showed his old residential address does not contradict his evidence that he notified the change.  There is no gainsaying that argument. It is clear the new post office box number was notified in April 1996, and again on 17 May 1996, yet the Department still had the old post office box number 15 months later in July 1997.  In this situation, it is impossible to be confident about the Department’s system of updating addresses.  Having said this, I note a number of letters were sent to the new post office box number.  The situation is a mystery, resolution of which is not assisted by the fact that no Departmental officer gave evidence before me.  In any event, by the time the application was lodged with the Tribunal, more than 28 days had elapsed since the expiration of seven days from the date upon which the decision was despatched to 89A Reservoir Street, Surry Hills.

For the purpose of considering Mr Rahman’s application, the Tribunal was constituted by Ms Jill Toohey.  Mr Rahman retained a new firm  of solicitors, Leitch Hasson & Dent.  They wrote to the Registrar of the Tribunal on 29 August enclosing an authority for them to act and referring to the problem that had occurred in regard to addresses.  The letter included the following paragraph:

“We understand that the Honourable Refugee Review Tribunal  has requested our client on 20 August 1997 to clarify about the late lodgment of his application before the Refugee Review Tribunal.  In this regard, we would like to inform that our client has advised the address of 89A Reservoir Street, Surry Hills, 2010 and mentioned his postal address as PO Box 1519 Darlinghurst, 2010.  Since then, the Department of Immigration has forwarded all of the correspondence to his postal address instead of his residential address of 89A Reservoir Street, Surry Hills, 2010 (copy of correspondence enclosed).  However, our client notified the Department about the change of his postal address as PO Box 198 Darlinghurst, 2010.  Accordingly, the Department of Immigration has maintained correspondence with his new postal address as informed (a copy of Applicant's interview letter enclosed). Moreover, he also advised the Department that his residential address also changed to 4/92 Abercrombie Street, Chippendale, 2008 which he mentioned on his application for Review before the Honourable Refugee Review Tribunal.

However, the notification for the refusal of his application for a Protection Visa from the Department of Immigration and Multicultural Affairs was forwarded to his first residential address of 89A Reservoir Street, Surry Hills 2010 instead of his present postal address at PO Box 198 Darlinghurst 2010.  As a result, he failed to receive the decision letter from the Department of Immigration in time, therefore he failed to lodge his application before the honourable Refugee Review Tribunal for a review. 

Therefore, we believe, that the honourable Tribunal will be kind enough to understand the situation of the late application and consider it sympathetically.”

The letter seems to assume the Tribunal has a discretion about late applications.  Regrettably, this is not so.  The regulations impose an inflexible cut-off date.  No doubt, they assume the Department will act efficiently and notify applicants of decisions at the addresses given by them to the Department. 

The most significant point about the letter is that the solicitors stated Mr Rahman had advised the Department of his change of residential address.  This fact is important because Ms Toohey made a decision in regard to jurisdiction without conducting any oral hearing or, apparently, independently investigating the position in regard to notification.   She had before her a claim by solicitors that the applicant had notified a change of address but she determined the matter, adversely to the applicant, on the assumption this was not so.  Ms Toohey did not even begin to address the factual matter that she needed to determine before she could properly reach a decision that the application for review was filed out of time.

On 29 January 1998, Ms Toohey handed down a decision that the Tribunal lacked jurisdiction to review Ms Young’s decision. In her reasons for decision, Ms Toohey referred to some background material regarding the application and to the relevant legislation. She noted an application for review must be lodged at a registry of the Tribunal no later than 28 days after notification of the decision (presumed to occur within seven days of posting) and there is no provision for extension of time. Ms Toohey referred to ss 53 and 66 of the Act and regulation 2.16. She said, too simplistically, "in effect they provide that notification of the decision must be by way of letter to the applicant's residential address". Ms Toohey then referred to decisions of this Court to the effect that the Tribunal has no power to extend time, where a properly addressed notification was not received within seven days after the date of posting. These decisions had nothing to do with the critical issue before the Tribunal; whether the subject notification was in fact properly addressed.

Ms Toohey referred to the letter from Leitch Hasson and Dent, saying:

“In essence it states that the notification of the decision was not valid because it was not sent to Mr Rahman's postal address but rather to his residential address where he no longer lived at the time.

Ms Toohey seems to have missed the fact that the solicitors were contending Mr Rahman had notified his change of residential address; and accordingly, on the basis that the residential address was the appropriate address for notification of the decision, she needed to reach a finding about the solicitors’ contention before she could hold, as she did, that the Department had notified the applicant of the decision at his last known residential address.

As I have said, Ms Toohey did not begin to address the question she had to determine. She reached a finding of fact for which there was no evidence. The case falls within s 476(1)(g) of the Migration Act 1958, namely there was no evidence or other material to justify the making of the decision. That ground is explained further in subs (4) of s 476, which indicates the ground is not to be taken to have been made out unless one of two situations occur. One of those situations is described in para (b): the person who made the decision based the decision on the existence of a particular fact and that fact did not exist. Ms Toohey’s decision was based on the fact that Mr Rahman’s last notified residential address was 89A Reservoir Street, Surry Hills. I find this was not so. The reason Ms Toohey had no evidence before her on the subject is that she failed to inquire into it.

In any event, it seems to me Ms Toohey’s concentration on Mr Rahman’s residential address was misconceived. Section 53(1) of the Migration Act requires a visa applicant to notify the Minister of his or her residential address.  Subsection (2) requires an applicant to notify any change of that address.  Subsection (4) reads:

“An applicant may tell the Minister that a specified person at a particular address may be given notifications for the applicant about the application.”

Subsection (5) provides that, subject to the regulations, only one person may be specified under subs (4) in relation to an applicant at any particular time.  The apparent intention of these provisions is to construct a system whereby, usually, notices of decisions will be given to applicants at their residential addresses; but to enable a particular applicant to specify an alternative course.  No doubt there are occasions when applicants lack confidence they will receive mail sent to their residential address, perhaps because of the number of people living there or the possibility of mail not being passed on to them.  There may be cases where, for privacy reasons, applicants they do not wish Departmental correspondence to come to their residential address.

Subsection (4) clearly permits an applicant to specify a recipient of notifications other than the applicant himself or herself, but I think it is not limited to that situation. I see no reason why subs (4) should not be used by an applicant who wishes to specify that a notice be sent to himself or herself, but at an address different from the residential address. It seems to me the form 929, that was completed by Mr Rahman on 17 May 1996, contemplates this possibility. As I have indicated, it required, in item 6, the postal address of the person nominated to receive mail on behalf of the applicant. The form provides for the applicant's name to be completed and this was done. No other person was named as a recipient of notifications. Accordingly, anybody reading that form should have understood the applicant was saying to the Department that he wished to specify, pursuant to s 53(4) of the Migration Act, that notifications be sent to himself at P.O. Box 198 Darlinghurst, rather than at his residential address. It is plain that no notification of Ms Young’s decision was sent to that address. Consequently, irrespective of whether or not Mr Rahman notified his change of residential address as he claims, the Department failed to comply with the requirement of regulation 2.16 that a notice of a decision to grant or refuse a visa be sent to "the last address given to the Minister by the applicant under subs 53(4) of the Act."

I mentioned Mr Peek’s submission that Mr Sarroff’s notification of his authority to act constituted a change of address for notifications. That submission must be rejected for two reasons. First, s 53(4) refers to an applicant telling the Minister that a specified person at a specified address may be given notifications. It does not envisage that the specified person will give a notification under the subsection. Secondly, Mr Sarroff did not purport to give a s 53(4) notification; he only indicated he was acting on behalf of Mr Rahman.

The proceeding before me is a challenge to the decision of the Refugee Review Tribunal; it is not a challenge to any decision of the Department. The order I am authorised to make is confined to an order concerning the Tribunal's decision. I will make such an order. I will set aside the Tribunal's decision and remit the matter to the Tribunal for hearing and determination according to law. In doing so, I observe that, on the view I take in regard to the operation of s 53(4), it is apparent the Department failed to notify the decision to refuse the visa in accordance with regulation 2.16. Accordingly, Mr Rahman’s appeal was within time. The Tribunal has jurisdiction to determine the appeal on its merits. It should now do this.

The formal order of the Court is that the decision of the Refugee Review Tribunal made on 29 January 1998 be set aside and the matter be remitted to the Tribunal to be heard and determined according to law.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:             9 June 1998

Applicant appeared in person
Solicitor for the Respondent:	Greg Peek of the Australian Government Solicitor
Date of Hearing:	9 June 1998