SZAQO v Minister for Immigration
[2004] FMCA 405
•23 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAQO & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 405 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – failure by the RRT to send a hearing invitation to the applicant’s authorised recipient at his nominated address for service – invitation sent to alternative addresses but not received – this constituted a breach of s.425 of the Migration Act 1958 (Cth) and was procedurally unfair – application granted. |
Migration Act 1958 (Cth), ss.425, 425A, 426A, 441C, 441G
SZAEG & Ors v Minister for Immigration [2003] FMCA 258
First Applicant: Second Applicant: | SZAQO SZAQP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ890 of 2003 |
| Delivered on: | 23 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 23 June 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
A writ of certiorari issue, quashing the decision of the Refugee Review Tribunal.
A writ of mandamus issue, requiring the Minister to cause the Refugee Review Tribunal to redetermine the matter according to law.
The respondent is to pay the applicants’ costs and disbursements, excluding the setting down fee of $327, of and incidental to the application, fixed in the sum of $3,000.
The respondent is to pay the setting down fee of $327, otherwise payable by the applicant, in this matter.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ890 of 2003
| SZAQO |
First Applicant
SZAQP
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 1 April 2003 and handed down on 23 April 2003. The RRT affirmed a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. The applicant is from Sri Lanka and made claims of political persecution by reason of imputed association with the Liberation Tigers of Tamil Elam (“the LTTE”). The relevant background facts are set out in paragraphs 3 to 6 of written submissions prepared on behalf of the Minister by Mr Kennett. I adopt those paragraphs for the purposes of this judgment:
The RRT generally accepted the applicants’ account of their personal background. It accepted that they were Tamils, originally from Jaffna, who had lived in Colombo since 1996. It accepted that the conflict in Sri Lanka had had a considerable effect on their lives: the area where they lived had been shelled and bombed, they had fled for their lives at various times and they had been forced to help the LTTE (court book, pages 113-114).
However, the RRT was not able to be satisfied that since moving to Colombo in 1996 the applicants had suffered harm serious enough to be classified as “persecution”. Further, the RRT noted that there had been considerable progress towards a resolution of the conflict and consequently a reduction in the likelihood of police harassment in Colombo. In these circumstances the RRT was not satisfied that there was any real risk of the applicants suffering the harm they feared, should they return to Sri Lanka (court book, page 114). Accordingly, the RRT did not accept that the applicants had a well founded fear of persecution in Sri Lanka.
These conclusions were reached in circumstances where, as the RRT noted, very limited evidence had been put before it. The RRT had written to both the applicants and their adviser inviting the applicants to attend a hearing (court book, pages 99-100), but did not receive a response. The letter sent to the Aapplicants’ address was returned to sender (court book, pages 108-109). Evidently, they did not appear at the appointed time for the hearing. The RRT exercised its power under s.426A of the Migration Act 1958 (Cth) (“the Migration Act”) to proceed to a decision without taking further action to hear from the applicants.
After the decision had been handed down, the applicants’ adviser contacted the RRT and asked it to re-open the matter so that the applicants could “put forward important evidence” (court book, pages 117). The RRT’s deputy registrar responded to the effect that the RRT had met its obligations and the decision thus became “final and operative” when it was handed down (court book, page 119).
The applicant proceeded today by leave on an amended application filed in court today. The grounds of the amended are that, first, the RRT had power to give the applicant a second opportunity to attend a hearing. The circumstances of the case fell within the exception of the doctrine of functus officio. The failure of the RRT to understand this point and to give the applicant a second opportunity to attend a hearing gave rise to jurisdictional error. Secondly, in the circumstances of the case, there was a contravention s.425 of the Migration Act giving rise to jurisdictional error. Thirdly, in the circumstances of the case, the applicant by not being given a hearing was denied procedural fairness.
The parties relied on written submissions, those of the applicant having been filed on 21 June 2004 and those of the respondent having been filed the following day. Mr Kennett and Mr Zipser, for the applicant, also made oral submissions. In addition, I permitted Mr Zipser to lead evidence from the applicant's migration agent in the form of two affidavits. These were filed in court today. The first affidavit was made on 21 June 2004 and the second was made on 23 June 2004. The migration agent, Mr Selliah, was cross-examined on his affidavits. The court book completed the presentation of evidence.
The issues in this case are technical but, in my view, relatively straightforward. The issues are, first, whether the applicant or his authorised representative, his migration agent, were notified of the hearing before the RRT. The second issue is if they were in fact not notified, whether the applicant is deemed to have been notified pursuant to the Migration Act.
If either the applicant or his migration agent were in fact notified of the invitation to attend the RRT hearing, in my view, the applicant has no case. In the circumstances, it would have been open to the RRT to proceed as it did in the absence of the applicant under s.426A(1) of the Migration Act. Similarly, if the applicant was not in fact notified and neither was his migration agent but the applicant is taken to have been notified by operation of the Migration Act, likewise the RRT was entitled to act in reliance upon s.426A(1) and no jurisdictional error would be apparent.
Mr Zipser advances an argument that the RRT was entitled and should have reopened the case on being told after its decision that the applicant wished to appear and had missed that opportunity. I am not attracted to Mr Zipser's submissions on that issue but for the reasons that will follow it is unnecessary for me to rule on it. In my view, the case can be decided by reference to the RRT’s obligations under s.425 of the Migration Act.
A similar issue arose before me last year in the case of SZAEG and Ors and Minister for Immigration [2003] FMCA 258. In that case, I dealt with my understanding of the operation of ss.425, 425A and 441C of the Migration Act at [10] – [13] of that decision. I adopt the same view in this case. Sections 441A and 441G are also relevant. In particular, s.441A(4) provides a prescribed means of dispatch of correspondence by ordinary prepaid post.
Section 441G provides for the appointment by an applicant of an authorised recipient to receive correspondence on his behalf. Ordinarily this is a migration agent. The effect of s.441G is that if an authorised recipient is appointed, the RRT must give the authorised recipient instead of the applicant any document that it would otherwise have given to the applicant. Significantly, the section at this point includes a note which reads:
If the Tribunal gives a person a document by a method specified in section 441A the person is taken to have received the document at the time specified in section 441C in respect of that method.
The section goes on to say that the RRT is not prevented from also sending correspondence to an applicant where an authorised recipient has been appointed. However, in my view, Parliament’s intention, apparent from the plain words of section 441G as illuminated by the note, is that where an authorised recipient is appointed the prescribed method of dispatch in s.441A and the deemed receipt provisions in s.441C bear upon documents sent to the authorised recipient rather than on documents sent to the applicant. In that regard the words “instead of the applicant” in subsection (1) of s.441G are significant and must have some work to do.
The first issue is whether either of two invitations issued by the RRT were received by the applicant or by his migration agent. It is not in dispute that the applicant appointed Mr Selliah his migration agent (court book, page 95). It appears that Mr Selliah completed at least part of the review application himself on behalf of the applicant which identified Mr Selliah as the applicant's authorised recipient for the purposes of s.441G. It is clear from the court book that the hearing invitation sent on 7 February 2003 (court book, page 99) was not received by the applicant. It was sent by registered post and returned. The applicant had left the address given in his application form. It appears that the same fate may have befallen the second invitation dated 3 April 2003 to attend the handing down of the decision (court book, page 102).
Mr Selliah gave evidence that he sent to the RRT a change of address form on behalf of the applicant identifying a new residential address.
I accept from his affidavit that he did send that change of address form. However, it also appears from the court book that the change of address form was not received by the RRT (see in particular page 119 of the court book).
Consistently with my decision in SZAEG at [19]-[20], I find the RRT was not notified of the applicant's change of address because it was not received by the RRT. I also accept from Mr Selliah's affidavits that he did not receive the hearing invitation sent by the RRT. I further accept that he did not receive the handing down invitation. The circumstances are that both letters were sent to Mr Selliah to a post office box in Parramatta. That was a post office address identified on the letterhead of correspondence sent to the RRT by Mr Selliah. However, it was not the address for service identified by either the applicant or Mr Selliah or both in the application for review (court book, page 94). The address for service notified was a street address.
Mr Selliah gave evidence, which I accept, that the post office box was not his but was associated with a business village which apparently provided services to individuals running businesses and using space and services provided at the business village. Although the hearing invitation was sent by registered post and was probably received at the post office, I accept Mr Selliah's evidence that it did not find its way to him. Neither did the handing down invitation. In the circumstances, I find that in fact neither invitation was received by either the applicant or by the applicant's authorised recipient.
The remaining question is whether receipt is deemed to have occurred by operation of the Migration Act. The answer to that question depends, in my view, upon whether the relevant invitations were sent by a prescribed means. For present purposes the relevant prescribed means was that prescribed by s.441A(4). That was by prepaid post to the last address for service provided to the RRT by the recipient in connection with the review or to the last residential or business address provided to the RRT by the recipient in connection with the review. That provision needs to be read in conjunction with s.441G. Where s.441G operates, the relevant address is not the applicant's residential or business or address for service but the address for service of the nominated recipient. That was the address for service set out on page 94 of the court book. That address was used initially by the RRT (court book, pages 97-98). However, it is not the address which was used by the RRT in sending the hearing invitation (court book, pages 99-100) or the handing down invitation (court book, page 102‑103).
In my view, the Minister cannot take advantage of the deemed receipt provisions in s.441C of the Migration Act if the relevant correspondence is not sent by one of the prescribed methods of correspondence set out in s.441A. Because the nominated address for service of the applicant's recipient was not used in this case for the relevant invitations, they cannot be taken to have been received by the applicant. Because the invitations were not in fact received by the applicant or by his migration agent, s.425 of the Act has not been complied with. As I have already found in SZAEG at [10], a breach of s.425 of the Migration Act is a breach of an inviolable precondition to the exercise of power by the RRT which invalidates the decision of the RRT.
The failure to invite the applicant to a hearing is also a breach of procedural fairness. The applicant was entitled to a hearing before the RRT. In the absence of an invitation he could not exercise that opportunity. I have no evidence of what the applicant would have presented to the RRT if he had had the opportunity to attend the hearing but I am prepared to assume that he would have had something to say. The opportunity to attend a hearing must almost always be a real one.
Mr Kennett submitted that in some circumstances there might be no want of procedural fairness even if s.425 of the Migration Act had been breached. I accept that as a hypothetical proposition on the basis that if the RRT had done everything that could be expected of it to send a hearing invitation to an applicant, that might discharge common law obligations of procedural fairness, even where s.425 had been breached.
However, it could be reasonably expected of the RRT that it would send a hearing invitation to the applicant at the address of his authorised recipient nominated by him. The RRT did not do so. The RRT did not do everything that could be expected of it to draw the hearing to the attention of the applicant. In those circumstances, I find that there was a want of procedural fairness.
There being jurisdictional error in the decision of the RRT, it is not a privative clause decision. The decision is therefore unprotected by s.474 of the Migration Act.
I will grant relief to the applicant in the form of constitutional writs of certiorari quashing the decision and mandamus directed to the Minister requiring him to cause the RRT to rehear the matter according to law. I frame the order in the nature of mandamus in that fashion noting that the RRT is not a party to the proceedings.
On the question of costs, the applicant having been wholly successful, costs should follow the event. Mr Zipser tells me that his professional costs are something in the order of $3,000 plus disbursements. Mr Kennett submits that costs should not be awarded on an indemnity basis. I agree. On the other hand, $3,000 in professional costs for a matter of this complexity is quite modest. I would normally have had no difficulty in awarding costs in favour of the Minister in that amount for a matter of this nature. There are also disbursements in issue. I am told that a filing fee of $273 has been paid. In addition, a setting down fee of $327 is payable.
I will order that the Minister pay the applicant's costs and disbursements, excluding the setting down fee of and incidental to the application, which I fix in the sum of $3,000. I will further order the Minister to pay the setting down fee of $327 otherwise payable by the applicant in this matter.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 28 June 2004
0