SZAEG v Minister for Immigration
[2003] FMCA 258
•4 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAEG & ORS v MINISTER FOR IMMIGRATION | [2003] FMCA 258 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – procedural fairness – whether applicant invited to attend RRT hearing – invitation not received by applicant – whether applicant notified the RRT of a change of address – change of address notification sent by applicant but not received by the RRT. |
Electronic Transactions Act 1999 (Cth), s.14
Migration Act 1958 (Cth), ss.425, 425A, 441, 441A, 441C
Migration Regulations
Makisi v Minister for Immigration (1995) 37 ALD 420
Minister for Immigration v Mohammad (2000) 62 ALD 397; [2000] FCA 1275
NAHF v Minister for Immigration [2003] FCA 140
NAHV v Minister for Immigration [2003] FCAFC 102
Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24
Xiao v Minister for Immigration [2000] FCA 1472
| First Applicant: Second Applicant: | SZAEG SZAEH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ170 of 2003 |
| Delivered on: | 4 July 2003 |
| Delivered at: | Sydney |
| Hearing date: | 24 June 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Michael Jones, Solicitor |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
THE COURT RECOMMENDS
That the Minister consider substituting a more favourable decision than the decision of the Refugee Review Tribunal in this case.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ170 of 2003
| SZAEG, SZAEH, SZAEI, SZAEJ, SZAEK, SZAEL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 12 June 2002 and handed down on 2 July 2002. The RRT affirmed a decision of a delegate of the respondent not to grant to the applicants protection visas. The applicants are a husband and wife and their four children. The applicant husband and wife arrived in Australia on 15 December 1997 with three children and the fourth child was born in Australia. They are citizens of Lebanon.
On 27 July 2000 the applicants made application for protection visas with the Minister’s Department. The only claims under the Refugee Convention and Protocol were made by applicant SZAEG (the father). For convenience, in these reasons I shall refer to him as the applicant. The applicant fought on the Christian side in the Lebanese civil war. He also lived for a time in South Lebanon, in the area formerly controlled by the South Lebanon Army. He fears persecution in Lebanon by reason of those associations.
The applications were refused by the delegate on 14 August 2000. An application for review was filed with the RRT on 13 September 2000. In that application (court book, page 44) the applicants’ residential address and address for service of documents was given as 40 Morgan Street, Merrylands. On 13 September 2000 the RRT wrote to the applicant at his address for service to acknowledge receipt of the review application and to provide information about the conduct of the review by the RRT. In that letter (court book, page 50) the author wrote:
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). The Tribunal will acknowledge any change of address information you provide. If we are unable to contact you, or you do not respond to our letters, you may lose your opportunity to appear before the Tribunal and give evidence on your case.
Those words appeared in bold type in the letter.
The applicant asserts that in early October 2000 he sent a fax from the Parramatta Post Office to the RRT to notify the RRT of a change of address. His new address was allegedly given in that fax. However, the RRT continued to send correspondence to the address at Morgan Street, Merrylands. On 8 May 2002 the RRT sent a hearing invitation to the applicant at the address in Merrylands (court book, page 51). That letter was returned to sender, marked “unknown at address, left address” on 13 May 2002 (court book, page 53). The RRT elected to proceed in the absence of the applicant and on 13 June 2002 the RRT wrote again to the applicant to the address in Merrylands to invite him to the handing down of the decision on 2 July 2002. Once again, that letter was returned to sender (court book, page 58). A further letter was sent by the RRT to the applicant to the address in Merrylands on 2 July 2002 to advise him of his rights of appeal.
The presiding member dealt with the inability of the RRT to contact the applicant in the following way in the reasons for decision of the RRT (court book, page 65-66):
On 8 May 2002 the Tribunal wrote to the applicants, by letter addressed to the first named applicant, advising that it had considered all of the papers relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at the hearing on 11 June 2002. They were advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice. No response was received. On 13 May 2002 the letter was returned to the Tribunal marked “left address: unknown at address”. The telephone number is not connected. The applicants did not appear before the Tribunal on the day and at the time and place on which they were scheduled to appear. In the circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.
The applicant states that he became aware of the rejection of the application for protection visas when he contacted the RRT through a solicitor to enquire about progress in August 2002. The applicant relies upon his own affidavit filed on 14 February 2003 and an affidavit by Mohammed Sammer Altakrity filed in court on 24 June 2002 as to the circumstances in which the applicant attempted to notify the RRT of his change of address. Mr Jones prepared written submissions which were filed on 17 June 2003 and he appeared at trial on behalf of the applicants and also made oral submissions.
The respondent relies upon affidavits by Pamela Anne Summers, district registrar of the RRT, filed in court on 24 June 2003 and affidavits by Brendan Fox of the Minister’s Department and Robert Russell, manager of the Macquarie Street Post Office at Parramatta. Ms Summers deposes as to the absence of any record of a fax being received from the Parramatta Post Office at the relevant time. Mr Fox deposes that no change of address notification was received from the applicant by the Minister’s Department. Mr Russell deposes that records of fax transmissions at the Parramatta Post Office have been destroyed in accordance with local procedures and practices.
The applicant, Ms Summers and Mr Altakrity were each cross-examined on their affidavits. The other deponents were not required for cross-examination.
Consideration and findings
This case is unusual. It is unusual because the case turns on an issue of fact to be determined by this Court. The issue of fact is whether the applicant notified the RRT of a change in his address. Issues of law are also involved concerning the interpretation of important provisions of the Migration Act 1958 (Cth) and the Migration Regulations. In essence, the applicant’s case is that the RRT decision is vitiated by jurisdictional error because the RRT breached an inviolable limitation or condition upon the exercise of its power. In the alternative, as transpired during oral argument, the applicant says that the decision of the RRT is vitiated by procedural unfairness. The application and Mr Jones’ written submissions speak of a breach of s.425A of the Migration Act but it transpired during argument that the real issue is whether s.425(1) was breached.
Section 425(1) provides that the RRT must invite the applicant to appear before the RRT to give evidence and present arguments relating to the issues arising in relation to the decision under review. Subsections (2) and (3) are not presently relevant. It is, in my view, sufficiently clear from the decisions from the Federal Court in NAHV of 2002 v Minister for Immigration [2003] FCAFC 102; NAHF of 2002 v Minister for Immigration [2003] FCA 140; Xiao v Minister for Immigration [2000] FCA 1472; Makisi v Minister for Immigration (1995) 37 ALD 420 and Minister for Immigration v Mohammad (2000) 62 ALD 397; (2000) FCA 1275, that s.425(1) is an inviolable pre-condition to or limitation on the exercise of power by the RRT and that a breach of it will vitiate a decision of the RRT notwithstanding the privative clause in s.474 of the Migration Act. In any event, where a breach of s.425(1) is established, it must also follow that the decision of the RRT would be vitiated by a breach of procedural fairness under the general law. As is clear from the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24, a breach of the rules of procedural fairness will invalidate a decision of the RRT notwithstanding the privative clause.
Section 425A of the Migration Act deals with notices of invitation to appear. The section deals with the content of notices and the methods of delivery of notices. Pursuant to s.425A(2)(a) the relevant method of delivery in this case was one of the methods specified in s.441A. Section 441A(4) provides that one of the authorised methods of delivery is dispatch by pre-paid post to the last address for service provided to the RRT by the recipient in connection with the review. Alternatively, the communication could be sent to the last residential or business address provided to the RRT by the recipient in connection with the review. In this case the residential address and the address for service given in the review application were the same. It was to that address that the hearing invitation was sent in purported compliance with s.425(1).
Section 441C is also relevant. Section 441C(4) provides that:
If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by pre-paid post or other pre-paid 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 – seven working days (in the place of that address) after the date of the document;
…
It follows that if the address to which the hearing invitation was sent on or about 8 May 2002 was the last address notified by the applicant to the RRT for service of documents (or his last known residential address in connection with the application for review) then s.441C(4) applies and the applicant would be taken to have been notified of the hearing invitation on 17 May 2002. There would have been no breach of s.425A and, more importantly, no breach of s.425(1). Conversely, if the applicant did notify the RRT of a change of address as he claims, s.441C(4) would not apply and ss.425A and 425(1) would have been breached, with the consequence that a jurisdictional error would have been committed vitiating the decision of the RRT. In that regard, Mr Lloyd accepted during argument that if there had been no invitation given to the applicant to appear, directed to his last known address, the hearing would have been procedurally unfair because the applicant had lost a real opportunity. The applicant gave evidence, which I accept, in response to a question from me that he would have elaborated upon information given in his application for a protection visa about the risk he faced due to him possibly being associated with the South Lebanon Army.
The applicant deposes that he notified the RRT of his change of address in early October 2000 by fax sent from the Parramatta Post Office. He did not keep a copy. He did not receive the hearing invitation that was sent to his old address. Mr Altakrity deposes that in October 2000 he went to the Macquarie Street post office in Parramatta with the applicant for the purpose of sending a fax concerning the applicant’s change of address. He deposes that when they got to the post office there were fax forms on a table and he assisted the applicant to fill out one addressed to the RRT giving his new address. He deposes that they took the form to the counter and saw a post office employee send the fax.
Under cross-examination the applicant stated that although he was not sure of the precise date when he went to the post office it was on one of three days in early October that he had off work for the purposes of moving house. He confirmed that he and Mr Altakrity went to the post office together and that Mr Altakrity helped him fill out a form. He thought that it was a change of address form. He confirmed that Mr Altakrity handed over the document to a female post office employee. They saw her place the document on the fax. Afterwards, they were handed the document that had been faxed as well a confirmation of receipt. These documents have not been retained by the applicant or by Mr Altakrity. When asked by Mr Lloyd what fax number he put on the document the applicant said that he put on what he understood to be the RRT fax number that he had obtained previously from a lawyer who had been assisting him. He said that this fax number had been used previously when he notified a change of address for the purposes of his right to work condition attaching to his bridging visa. Under cross-examination Mr Altakrity said that he filled out a two page document obtained at the post office based upon information given to him orally by the applicant at the time.
The applicant resisted suggestions adverse to his credibility and presented as a reliable witness. So did Mr Altakrity. I accept the evidence of the applicant and Mr Altakrity that they did attend the Parramatta Post Office in October 2000 with the intention of sending a fax to the RRT to notify the RRT of a change in the applicant’s address. It is unfortunate that neither the applicant nor Mr Altakrity kept the document and the fax confirmation. It is clear from the affidavit of Robert Russell that Australia Post no longer retains any records. However, annexed to Mr Russell’s affidavit is a two page domestic facsimile lodgment document. Mr Altakrity gave evidence of filling out a two page document. I think it likely that what Mr Altakrity filled out was a fax post domestic facsimile lodgment document and that Mr Altakrity wrote on that document, on instructions from the applicant, information concerning the applicant’s change of address.
Two items of evidence from the court book provide some corroboration of the applicant’s account. The first is that it is clear from page 44 of the court book that the applicant had previously sent his protection visa application to the RRT by fax from the Parramatta Post Office. It is also clear from the affidavit of Pamela Anne Summers that the RRT has a record of receiving that facsimile. Secondly, prior to moving house, the applicant received the letter dated 13 September 2000 from the RRT which alerted him in bold type to the importance of him notifying the RRT of any change of address. This would have been still fresh in his mind when he was moving house. The protection visa application was an important matter for the applicant and I accept that he did not intend to abandon his application.
Section 14(1) of the Electronic Transactions Act 1999 (Cth) (“the Electronic Transactions Act”), which commended operation on 15 March 2000, provides that, for the purposes of a law of the Commonwealth, if an electronic communication enters a single information system outside the control of the originator, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the dispatch of the electronic communication occurs when it enters that information system. For the purposes of this matter the relevant system was the system operated by Australia Post. That system was outside the control of the originator once the document to be transmitted was handed to the Australia Post employee. Accordingly, I find that the change of address notification was dispatched when handed to an employee of Australia Post at the Parramatta post office on some date unknown in October 2000.
I was referred by Mr Lloyd to Migration Regulation 4.39. That regulation provides that an applicant for review may lodge an address for service in a review and, at any time after lodging an address for service, may lodge a new address for service in that review. The regulation further provides that if an applicant for review lodged with the RRT a new address for service then the new address becomes the applicant for review’s address for service in the review and, he or she must, immediately after doing so, serve on the Minister a notice of that new address for service. It is common ground that the Minister has not been served with the change of address which the applicant says he notified to the RRT. However, in my view, nothing turns on that omission by the applicant. If the applicant notified a change of address to the RRT and the RRT failed to act on that notification s.425(1) would have been breached whether or not the Minister was served with a copy of the notification. Interestingly, regulation 4.39 contains a definition of “lodge an address for service” as follows:
“lodge an address for service” in relation to an application 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.
There is no suggestion from this regulation that the word “give” carries anything other than its ordinary meaning. The Macquarie Dictionary (third edition) relevantly defines “give” as “to hand over, deliver to another in exchange for something, to present to, to furnish or provide, to impart or communicate, or to produce or present”. It is a common feature of each of these definitions that the giving also connotes receiving. In other words, where something is dispatched it is not given until it is received.
Section 14(3) of the Electronic Transactions Act provides that for the purposes of a law of the Commonwealth, if the addressee of an electronic communication has designated an information system for the purposes of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication enters that information system. In other words, pursuant to s.14(3) the electronic communication is received when it enters the information system of the addressee. There is no deeming provision in the Migration Act relating to communications to the RRT. In the circumstances, s.14(3) applies.
Ms Summers deposes that the RRT has designated an information system for the purpose of receiving electronic communications. The RRT publishes a single facsimile number for all correspondence. Ms Summers deposes that she has inspected the records for the year 2000 and, in particular, for the period September and October 2000. The records disclose that a facsimile communication was received from the Parramatta Post Office on 13 September 2000. I find that this was the RRT review application faxed on that day. However, there is no record of any fax having been received from the Parramatta Post Office during October 2000. Ms Summers was pressed under cross-examination by Mr Jones about a curiosity in the record for 25 October 2000. On that day, according to the record, no faxes were received until mid afternoon. Mr Jones suggested to Ms Summers that that might indicate that the fax machine was out of order on that day. Ms Summers conceded the possibility but noted that the transaction record did show faxes being sent in the morning of that day. Ms Summers also accepted a suggestion from me that it was possible that the fax machine had run out of paper during that day and that the transaction record for the receipt of faxes did not commence until the fax machine had been reloaded with paper. In that event the receipt of a fax would simply have been delayed.
Mr Jones submitted that it was plausible that the fax machine had been out of order on the morning of 25 October 2000 and that the applicant had sent his fax to the RRT during the time when the machine was out of order. I do not accept that submission for several reasons. First, the applicant’s best recollection was that he sent the fax in early October, not on 25 October. Secondly, both he and Mr Altakrity said that a receipt confirmation came through while they were at the post office. If the fax machine had been out of order I do not understand why a receipt confirmation would have come through. Thirdly, if the machine had been out of order, one would have thought that no faxes could have been sent. Faxes were sent from the RRT machine on the morning on 25 October 2000.
Mr Jones also suggested that the transaction record might be incomplete in that a page or pages may have been mislaid. That is possible in the sense that anything is possible, but the transaction record appears to me to be comprehensive. In addition, if the fax from the applicant had been received by the RRT one would have thought that the RRT would have received the document that had been faxed. The RRT would have to lose not only the page showing the transaction record but the document that had been faxed. In my view, that is most unlikely. I accept Ms Summers’ evidence that there is no record of any fax being received from the Parramatta Post Office at any stage during October 2000. I find that no fax was received from the applicant during that month and I find further that the RRT did not receive the change of address notification from the applicant that he caused to be transmitted from the Parramatta Post Office.
It might seem a surprising conclusion that a fax communication was sent from the Parramatta Post Office, purportedly to the RRT, but not received. A possible explanation is that the fax was sent to the wrong fax number. The applicant’s evidence under cross-examination was that he sent the fax to the same number that he had previously sent a change of address notification relating to his bridging visa. However, that notification must have been sent to the Department, not the RRT. In any event, Mr Fox deposes that there is no record of the Department having received any fax from the Parramatta Post Office in October. Another possibility is that the applicant simply got the number wrong. He was apparently relying upon his memory based upon a number he had been given previously by a lawyer assisting him. I find, on the balance of probabilities, that the fax sent from the Parramatta Post Office in October 2000 was sent to some address unknown but it was not received by the RRT. It follows that the RRT was not notified of the applicant’s change of address because no change of address notification was “given” to the RRT. Further, the facsimile transmission from the Parramatta Post Office did not enter the designated RRT information system for the purposes of s.14(3) of the Electronic Transactions Act.
Because the RRT was not notified of a change of address it cannot be said that the RRT breached s.425(1) or s.425A. Neither can it be said that the RRT proceedings were procedurally unfair. There is a CMS case note (court book, page 74) that details the attempts made by the RRT to contact the applicant. Apart from sending letters to the last address known to the RRT, RRT officers attempted to contact the applicant by telephone without success. They made enquiries as to whether the applicant had left Australia. It is always the case that in any situation something more could have been done but the RRT can only be expected to take reasonable steps to locate an applicant. In my view, the steps taken by the RRT in this case were reasonable and sufficient. It is unfortunate that the applicant missed out on an opportunity to make submissions to the RRT in person but the procedures adopted by the RRT were fair.
In addition, the applicant bore the responsibility for notifying the RRT of his change of address. His attempt to do so was unsuccessful. That was not the fault of the RRT. In addition, the applicant waited two years before following his application up with the RRT, notwithstanding that he had been told in writing in the letter dated
13 September 2000 that the RRT would acknowledge any change of address notification. It should have occurred to the applicant that something was wrong when he received no notification.
There remains a risk that the decision made by the RRT was not the correct or preferable decision. The applicant had made claims of substance that his brother was detained by the Lebanese authorities in 2000 and questioned about the applicant. There is a suggestion that the applicant was suspected of association with the South Lebanon Army, which operated as a proxy of the Israeli armed forces in South Lebanon for approximately 20 years. Following the withdrawal of the Israeli Defence Force in May 2000, most SLA members fled Lebanon and several thousand members or supporters who remained were rounded up by Hizballah and handed over to the Lebanese authorities. Those persons were, as at 2000, being dealt with before military courts in Beirut. I have no knowledge what the fate of those persons is. It is possible that someone detained and interrogated in 2000 informed upon the applicant which may well have stimulated an inquiry by the authorities to the applicant’s brother. That possibility was only lightly explored by the RRT presiding member. If the applicant were suspected of association with the SLA he could face grave danger if he returned to Lebanon. That risk is not one to be dismissed lightly. The merits of the decision of the RRT are beyond the scope of these proceedings. Nevertheless, the Minister has power to substitute a more favourable decision than the decision of the RRT. Given the unfortunate circumstances of this matter, I will recommend to the Minister that he consider exercising that power.
I will dismiss the application and I will hear the parties as to costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 July 2003
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