SZBPF v Minister for Immigration

[2005] FMCA 1085

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBPF v MINISTER FOR IMMIGRATION [2005] FMCA 1085

MIGRATION – Application for review of decision of RRT – where applicant gave a different name for his authorised recipient in the response to hearing form – whether this constituted a change to his authorised representative – whether failure to advise “second” authorised representative of the handing down of decision constituted jurisdictional error.

Migration Act 1958, ss.424A, 441G, 359
Federal Magistrates Court Rules 2001

Re Minister for Immigration: Ex parte Palme (2003) 216 CLR 212
Chen v Minister for Immigration [2005] FMCA 1000

Applicant: SZBPF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2087 of 2003

Judgment of: Raphael FM

Hearing date: 25 July 2005

Date of Last Submission: 25 July 2005

Delivered at: Sydney

Delivered on: 25 July 2005

REPRESENTATION

For the Applicant: In Person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2087 of 2003

SZBPF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Fiji of Indian ethnicity.  He arrived in Australia on 12 May 2002. On 31 May 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 20 December 2002 a delegate of the Minister refused to grant a protection visa and on 8 January 2003 the applicant applied for review of that decision.

2. The applicant's application for review to the Refugee Review Tribunal is found at [CB 53 to 56]. On the second page [CB 54] there is found section C. This indicates that an applicant can nominate someone to receive correspondence and to act on his behalf; that person is known as the “authorised recipient”. The applicant completed that part of the form naming Christopher Muthu of Ozi-Land Immigration Consultants as his authorised recipient. The effect of making this decision was to bring into force s.441G of the Migration Act 1958 (the “Act”) which is in the following form:

“Authorised recipient

(1) If:

(a) a person (the applicant ) applies for review of an RRT-reviewable decision; and

(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;

the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

Note: 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.

(2)If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document..

(3)The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient.

(4)The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.

(5)This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.”

1. The Tribunal wrote to the applicant on 8 January 2003 acknowledging receipt of his application and sent a copy to the authorised recipient in accordance with s.441G. The letter enclosed a number of documents including an appointment/cancellation of authorised recipient form. The Tribunal will have assumed that if the applicant wished to change his authorised recipient he would use that form in order to do so. On 7 August 2003 the Tribunal wrote again to the applicant advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to a hearing. A copy of the letter was sent to the authorised recipient.

2. At [CB 62] there is found the response to the hearing invitation.  This indicates that the applicant did not wish to attend the hearing but it also names his authorised recipient as another person from the same immigration consultants as Mr Muthu.  Today the applicant gave evidence to the effect that he had never met Mr Ramasamy the person who had been named on the form and the applicant did not complete the form himself, although he signed it.  This form is not the form provided by the Department for the appointment/cancellation of an authorised recipient.

3. On 3 September 2003 a letter was written by the Tribunal to the applicant advising him that it had made a decision and inviting him to the handing‑down of that decision.  A copy was sent to Mr Muthu.  The decision was handed down on 25 September 2003.  Not unexpectedly the decision found that the applicant's claim for asylum was not adequate to satisfy the Minister, through the Tribunal, that he had a well-founded fear of persecution for the Convention reason of race or religion.  As the Tribunal said at [CB 74]:

   “He has made general claims about the circumstances of Fiji Indians in Fiji.  While there is no doubt that many Fiji Indians were assaulted and intimidated during the period of the coup in 2000 I rely on evidence from the DFAT about developments in Fiji since the coup, on the basis of which I am satisfied that merely being Fijian Indian does not give rise to a well-founded fear of Convention based persecution in Fiji.

   As to the applicant's own circumstances, he has provided little detail about any of his claims.  He has provided no information about when the various racially motivated problems occurred,  problems which, having regard to the independent evidence above, appear most likely to relate to the period of the coup in 2000.  He has also not explained how, if he was subjected to discrimination in his workplace, he was able to gain the position of technician and to remain in that position for many years until he came to Australia.  Without the opportunity to question the applicant about the circumstances which led to his decision to leave Fiji last year, I cannot be satisfied that he was persecuted because of his race when he most recently left Fiji...”

4. The applicant filed an amended application in this court on 17 February 2005. The grounds appearing in that document relate solely to the fact that the letter written to advise the applicant of the handing down of his decision was written not to Mr Ramasamy but Mr Muthu. This, it is alleged, was a breach of s.441G and the failure to comply with a mandatory requirement of the Act constituted a jurisdictional error.

5. I do not accept the submissions made by the applicant for the following reasons. First, in my view, the applicant did not change his authorised representative by filling in the form found at [CB 62]. Because of the importance of s.441G I believe that more is required of an applicant than the indication given in this form. A specific form is provided to applicants so that they can change their authorised representatives and even if that form is not completed there should be some positive indication that the old representative is no longer to be considered as the authorised representative. I say this because of the importance of s. 441G and its relationship to the process of review carried out by the Tribunal. I have found that in relation to a letter sent pursuant to s.359A (letters whose equivalent in relation to satisfy the RRT is s.424A) that the failure to give notice to an authorised recipient under s.441G does constitute a jurisdictional error (Chen v Minister for Immigration [2005] FMCA 1000). If an obligation of this type is placed upon the Tribunal the an equally strict obligation is placed upon the applicant to ensure that at all times the Tribunal is aware of the person to whom such a letter should be written.

6. Even if I am wrong about this finding, which would have had the effect of making the letter that was written to Mr Muthu compliant, I accept Mr Reilly's submissions that in relation to a letter concerning attendance at the handing down of a decision I should be bound by the decision of the High Court in Re Minister for Immigration: Ex parte Palme (2003) 216 CLR 212 at [42-48] and [55] where the High Court found that a handing down "logically and temporally succeeds the making of a decision in the exercise of a power".

7. The applicant was unable to address me about these matters of which he appeared to be almost totally unaware.  He told me that he had a lot of problems in Fiji and that they were a lot of problems for Fijian Indians still remaining in that country.  This is an attempt to make the court reconsider the merits of the case.  That is an impermissible request to make.

8. In all the circumstances I am unable to find grounds upon which I can review this decision. I dismiss the application. I order that applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: