SZFQY v Minister for Immigration
[2008] FMCA 261
•7 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFQY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 261 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether applicant had nominated an authorised recipient to receive correspondence in accordance with s.441G of the Migration Act 1958 (Cth) – whether Refugee Review Tribunal sent to applicant in accordance with s.441A of the Migration Act 1958 (Cth) letters pursuant to ss.424A and 425 of the Migration Act 1958 (Cth) – relief granted. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.422B; 424A; 425; 425A; 441A; 441G; 441G(1); 441G(2); 474; pt.7 div.4; pt.7 div.7A; pt.8 div.2 |
| R v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374 R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 |
| Applicant: | SZFQY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 967 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 29 February 2008 |
| Date of last submission: | 29 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Byrne |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Mr P. Snell, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 967 of 2007
| SZFQY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 26 October 2006 and handed down on 16 November 2006.
The applicant is from Bangladesh and claims to have a well founded fear of persecution from members of the Bangladesh National Party (“BNP”) by reason of his involvement with the Awami League who are political opponents of the BNP (“the Applicant”).
Procedural background
On 22 July 2004, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 18 August 2004, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. The Applicant provided no further material in support of the review application. On 16 December 2004, the Refugee Review Tribunal, previously constituted, affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought review of the decision of 16 December 2004 in this Court and, on 6 June 2006, the matter was remitted back to the Refugee Review Tribunal for determination according to law.
On 26 October 2006, the newly constituted Refugee Review Tribunal (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
On 21 March 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The proceeding before this Court
The Applicant was represented before this Court by Mr Byrne, of counsel.
The only issue before this Court is whether or not the Applicant was validly given notice of: (i) a letter giving the Applicant information that may be part of the reason for affirming the decision under review, dated 8 August 2006; and (ii) a letter inviting the Applicant to come to a further hearing, dated 29 September 2006 (“the Letters”). The Letters were sent to the Applicant’s migration agent.
The hearing proceeded on the basis that the Applicant had not received the Letters and was not aware of their contents.
Under the statutory regime, the Letters must be given to an applicant in accordance with s.441A of the Act, which is as follows:
“Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient ); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of a member, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of a member, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who:
(a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review. (emphasis added)
Transmission by fax, e‑mail or other electronic means
(5) Another method consists of a member, the Registrar or an officer of the Tribunal, transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review.”
However, pursuant to s.441G of the Act, if the Applicant gave the Tribunal written notice of the name and address of another person authorised by the Applicant to do things on behalf of the Applicant that consist of, or include, receiving documents in connection with the review; then the Refugee Review Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Section 441G of the Act is as follows:
“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 (emphasis added) the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must (emphasis added) 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 (emphasis added). 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.”
In his application for review to the Refugee Review Tribunal, lodged on 18 August 2004, the Applicant informed the Tribunal that he had an adviser authorised to act for him in relation to his application and provided the name and contact details of that person.
The form went on to ask the Applicant “Where do you want us to send correspondence about your application?”. The form provided three alternative boxes to be ticked:
i)“My residential address in Australia”;
ii)“My mailing address”; or
iii)“My Authorised Recipient”
The Applicant ticked the box marked “My residential address in Australia”.
Under the box “My Authorised Recipient” are the following words:
“You can nominate someone to receive correspondence in connection with the review. This person is known as your Authorised Recipient. If you nominate an Authorised Recipient, all correspondence will be sent to this person. If you have an adviser but you nominate another person to be your Authorised Recipient, the Tribunal will not send correspondence to your Adviser.”
Under those words are the following words, “I authorise the following person to receive correspondence in connection with the review”. Thereafter followed two boxes:
i)“my adviser” or
ii)“another person, who is NOT my adviser”
Under these boxes is space for the address of an authorised person who is not the applicant’s adviser.
The Applicant ticked the box “my adviser”.
Counsel for the First respondent submitted that, in ticking the sub-box “my adviser” under the heading “My Authorised Recipient”, the Applicant was giving authority for his adviser to do things on his behalf, including receiving documents in connection with the review, and, therefore s.441G of the Act was triggered and the Tribunal was obliged to send the Letters to the adviser.
Counsel for the Applicant submitted that s.441G of the Act was only triggered where an applicant had nominated an authorised recipient to do things on his behalf. Counsel for the Applicant submitted that in completing the form as he did, the Applicant was identifying his residential address as the address to be used by the Tribunal for correspondence and clearly did not identify his adviser to do things, including receiving documents on his behalf.
Counsel for the Applicant submitted that some meaning must be given to the words in s.441G(1) of the Act “on behalf of”, and that, having regard to the context in which s.441G of the Act appears, the words ought to be construed narrowly.
In construing the words “on behalf of”, counsel for the Applicant referred the Court to R v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374 (“R v Toohey”), where Barwick CJ stated that “the words “on behalf of” are words of varying significance and must necessarily take their particular meaning from the context in which they are used” (at [14]) Barwick CJ stated at [9] that:
“The phrase “on behalf of” is, as Latham CJ observed in R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 at p435, “not an expression which has a strict legal meaning”, it bears no single and constant significance. Instead it may be used in conjunction with a wide range of relationships, or however in some way concerned with the standing of one person as auxiliary to or representative of another person or thing.”
Barwick CJ gave the example of an agency relationship and said “context will always determine to which of the many possible relationships the phrase “on behalf of” is in a particular case being applied” (R v Toohey at [10]). His Honour referred to Dixon J in R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 at p.435 where Dixon J said that the context and subject matter will be determinative.
The context in which s.441A and s.441G of the Act appears is in Part 7 Division 7A of the Act. Division 7A is titled “Giving and receiving review documents”. This Division sets up the statutory regime about the way in which the Tribunal must give documents, including ss.424A and 425 letters, to an applicant. Sections 424A and 425 appear in Part 7 Division 4.
Part 7 Division 4 of the Act is titled “Conduct of review” and commences with s.422B of the Act which states as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A (emphasis added), in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.”
In the circumstances, the Tribunal must strictly comply with the requirements referred to in Part 7 Division 4 and Division 7A. To do otherwise will result in jurisdictional error (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24). Moreover, counsel for the First Respondent made no submission to the contrary. In that context, the words “on behalf of” in s.441G should construed narrowly to mean in the stead of the Applicant.
In my view, the first three boxes on the review application form are mutually exclusive. In ticking the first box “My residential address in Australia”, and not ticking “My Authorised Recipient” as an address where correspondence was to be sent, makes clear that the Applicant was not authorising his adviser to receive documents in connection with his review on his behalf. Section 441G of the Act requires that an “authorised recipient” be authorised “to do things on behalf of the applicant”. Moreover, the review application form, in explaining the consequence of ticking the box marked “Authorised Recipient”, does not pick up the language of s.441G of the Act in this respect (see paragraph 15 above in these Reasons).
Where the Applicant clearly identified his residential address in Australia as his address for correspondence and did not tick the box “My Authorised Recipient”, in my view, the tick next to the box “my adviser” is inconsistent with ticking the box marked “My residential address in Australia” and would only have effect had the Applicant also ticked the box marked “My Authorised Recipient”.
In the circumstances, the Applicant was not deemed by s.441G(2) of the Act to have been notified.
In the circumstances, the Tribunal was obliged to give each of the Letters to the Applicant in accordance with s.441A of the Act.
It is common ground that the Letters were not given to the Applicant in accordance with s.441A of the Act.
In the circumstances, the Tribunal failed to comply with s.424A of the Act and failed to comply with s.425 of the Act in respect of the way in which the information referred to in s.424A was to be given and the invitation to come to a hearing under s.425 was to be given.
The First Respondent did not seek to argue whether or not the Tribunal was required to give the Applicant a further invitation to come to a hearing and conceded that, if the Tribunal embarked upon doing so, it was required to do so in accordance with s.425 and s.425A of the Act.
In any event, in the circumstances of this case the Tribunal was obliged to give s.424A information to the Applicant in accordance with s.441A of the Act. The matter had been remitted to the Tribunal on 5 June 2006 by Raphael FM for that very purpose.
The Tribunal’s failure to give the Letters, or either of them, to the Applicant in accordance with the mandatory provisions s.424A and/or s425 of the Act is an error going to the Tribunal’s jurisdiction.
The First Respondent conceded that if the Court found that there was jurisdictional error in the Tribunal’s decision, then the First Respondent would not submit to the Court that the Court ought to exercise its discretion not to grant the Applicant relief.
Accordingly, the decision of the Tribunal should be set aside and the matter remitted to the Tribunal for determination according to law.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 5 March 2008
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