SZGLD v Minister for Immigration - [2009] FMCA 667

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGLD v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 667

MIGRATION – Application to review decision of Refugee Review Tribunal – matter remitted to Tribunal – whether Tribunal sent applicant notice of hearing invitation to the last address provided to the Tribunal by the recipient in connection with the review – where applicant had provided his new address to the solicitors for the Tribunal during judicial review proceedings – application dismissed.

Migration Act 1958 (Cth), ss.48B, 423, 424, 424A, 425, 425A, 426A, 441A, 441G, 477

Craig v The State of South Australia (1995) 184 CLR 163
Hillig v Darkinjung Pty Ltd & Ors [2008] NSWCA 75
Minister for Immigration and Citizenship v SZKKC and Others (2007) 159 FCR 565
Minister for Immigration and Citizenship v SZLIX and Another (2008) 245 ALR 501
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492
SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294
SZBHU v Minister for Immigration & Citizenship [2007] FCA 1614
SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189
SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980
SZKHY v Minister for Immigration & Anor [2007] FMCA 1771
SZKHY v Minister for Immigration and Citizenship [2008] FCA 206
SZMHJ v Minister for Immigration & Anor [2008] FMCA 1432
The Queen v The Australian Broadcasting Tribunal and Others; Ex parte Hardiman and Others (1980) 144 CLR 13

Applicant:

SZGLD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2567 of 2008

Judgment of:

Barnes FM

Hearing date:

7 April 2009

Delivered at:

Sydney

Delivered on:

22 July 2009

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr Y Shariff

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2567 of 2008

SZGLD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal dated 7 July 2006 and handed down on 27 July 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, claimed to fear persecution in China on the grounds of his religious beliefs. He applied for a protection visa in November 2004. On 27 January 2005 a delegate of the first respondent refused his application. He sought review by the Refugee Review Tribunal on 25 February 2005. On 7 April 2005 the Tribunal affirmed the decision not to grant the applicant a protection visa. On 30 May 2005 the applicant sought review in this Court and on 3 April 2006 Lloyd-Jones FM ordered by consent that leave be granted to join the Refugee Review Tribunal as the second respondent in those proceedings, that a writ of certiorari issue to quash the decision of the Tribunal and that a writ of mandamus issue directing the Tribunal to reconsider and determine the matter according to law.
On 30 May 2006 the Tribunal as reconstituted wrote to the applicant at the Campsie address he had provided to the Tribunal when he first sought review in February 2005 (the first Campsie address). The letter informed the applicant that his matter had been remitted to the Tribunal for reconsideration and, among other things, advised that “This letter has been sent based on the most recent address information we have in connection with your application. The Tribunal will send all future communications to the address at the top of this letter, unless you advise us otherwise.”
On 2 June 2006 the Tribunal wrote to the applicant at the same address inviting him to attend a Tribunal hearing on 6 July 2006. A copy of the hearing invitation letter was also sent to a Canterbury address that in its reasons for decision the Tribunal described as the address for service the applicant had provided to the Federal Magistrates Court on 30 May 2005 in connection with his application for judicial review of the first Tribunal decision. The applicant did not attend the Tribunal hearing. Neither of these letters was returned unclaimed to the Tribunal. In its decision the Tribunal recorded that it also tried to contact the applicant on the mobile telephone number recorded on the Tribunal review application form and on the May 2005 application to this Court, but that the number was not in service, that the applicant did not have an authorised recipient and that the Tribunal had no contact details beyond those already used.
In its reasons for decision the Tribunal found that the available material was insufficient for it to make a favourable decision or to determine the details and veracity of the applicant’s claims and whether they established that he had a well-founded fear of persecution within the meaning of the Refugees Convention. The Tribunal set out some of the matters on which information was lacking and concluded on the limited evidence before it that it was not satisfied that the applicant was or had been a Christian (including a member of a Shouter church or any other relevant group), that he had been subject to adverse attention for that or for any other reason in the past, or that the alleged past events or any other facts gave rise to a well-founded fear of persecution within the meaning of the Refugees Convention now or in the reasonably foreseeable future.
The Tribunal advised the applicant that its decision would be handed down on 27 July 2006 by letter sent to the first Campsie address. The applicant did not attend the handing down. A copy of the decision was sent to the applicant at the first Campsie address.
On 4 September 2006 an officer of the Tribunal was contacted by telephone by a Ms Zhang, who identified herself as the applicant’s former representative, enquiring about the applicant’s case. In a file note in the Court Book the officer recorded that he informed Ms Zhang that the applicant would need to complete a written authority to allow the officer to discuss the matter with her. By facsimile letter dated 4 September 2006 the applicant informed the Tribunal that in March 2006 he had been told by the solicitor for the Minister that his case had been sent back to the Tribunal by the Court and that the Tribunal would contact him in due time. He had not heard from the Tribunal in over four months. Hence he had asked the migration agent to assist him. He stated that he now understood that the Tribunal had contacted him many times but that he did not get any letters since he had changed his address. He stated that he had moved quite often and that the last address he provided to the Court was a specified Canterbury address (which I note was the address to which the Tribunal sent a copy of the hearing invitation). He also informed the Tribunal of a “new” residential address in Campsie (the second Campsie address) and a postal address in Auburn. In addition he completed an appointment of representative form appointing Ms Zhang as his representative but stating in that form that he did not wish to appoint her as his authorised recipient.
By letter of 6 September 2006 the Tribunal informed the applicant that the Tribunal member had advised that the decision had been finalised and handed down on 27 July 2006 and that a letter to that effect had been sent to his address for correspondence as provided to the Tribunal. The Tribunal advised that it had completed its review. The letter stated that it enclosed a copy of the Tribunal’s statement of reasons but also advised that the Tribunal was not renotifying the applicant of the decision and that the decision date remained unchanged.
Notwithstanding that Ms Zhang had not been appointed authorised recipient, this letter was addressed to her as the authorised recipient of the review applicant. The letter was also marked “Copy sent to” the applicant at the Auburn postal address provided in his letter of 4 September 2006.
In addition, according to a case note in the Court Book, a Tribunal official telephoned Ms Zhang on 8 September 2006 advising her that the Tribunal had outlined its position in its letter to her and the applicant of 6 September 2006 and that the case had been finalised. Ms Zhang advised the Tribunal that she had spoken to the Minister’s lawyer about the address issue and that “they have a record of the applicant’s address”. The officer is recorded as responding that the Tribunal had acted on the two most recent addresses provided to it and that it had received no response, the applicant had not attended his hearing, nor had the letters been returned.

This application

On 3 October 2008 the applicant filed an application in this Court seeking review of the Tribunal decision. In that application he alleged that he had been denied his legal rights in relation to the processing of his protection visa application due to third party (migration agent) fraud and that his migration agent, Ms Zhang, failed to inform him of the Tribunal hearing. He also claimed that he had informed his agent of his new residential and postal address in March 2006, that she accompanied him to the Court to lodge a notice of change of address and that this could be verified by a letter he had received from the solicitor for the Minister dated 16 May 2006 posted to his new address (the second Campsie address).
The applicant claimed that it was “obvious” that the agent had failed to inform the Tribunal of his new address. He also claimed that his agent had asked him to sign a form on 4 September 2006 which advised that he authorised her as his migration agent but not as his authorised recipient.
The applicant claimed that because of migration agent fraud he was denied the chance to present evidence and argument at the Tribunal hearing and the Tribunal had consequently reached an adverse decision because of the alleged lack of evidence.
In an accompanying affidavit sworn on 2 October 2008 the applicant claimed that his agent was hired to help with the processing of his protection visa application, that she had failed to inform him of the processing of the application and the hearing before the first Tribunal, but had helped him to appeal to the Court and that during the proceedings he “gave the Court” his new address for receiving mail which was used by the solicitor for the Minister. He claimed that he did not receive any notice or hearing invitation from the Tribunal before 6 September 2006 because the agent did not inform the Tribunal of the new address that had been used by the Court in May 2006. He also stated that his agent had advised him that he had missed the time to lodge an appeal with the Court, that she introduced him to a lawyer who agreed to represent him, but that the lawyer demanded “tens of thousand dollars that I simply could not afford”.
The applicant swore a further affidavit on 20 January 2009, filed on 23 January 2009, stating that the Tribunal did not contact him at his “updated address filed at Federal Magistrates Court” to invite him to a hearing. Relevantly he claimed he notified the Court of his updated address in Campsie (the second Campsie address) and that thereafter he received a letter from Phillips Fox (as they then were), the solicitors for the Minister, a copy of which was annexed. That letter, dated 16 May 2006, was addressed to the applicant at the second Campsie address. It referred to the matter of SZGLD v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal and stated “We act on behalf of the respondents in this matter”. It enclosed, by way of service, a copy of sealed final orders dated 3 April 2006.
In his affidavit the applicant claimed that he assumed the Tribunal would send letters to the most recent address provided to the Court and to the Minister’s solicitor (the second Campsie address), but that he had not received any correspondence from the Tribunal until he contacted them through his former migration agent in September 2006.
He claimed that as he had informed the Court and the Minister’s solicitor of his most recent address and had received letters from the Minister’s solicitor sent to this address he was not aware that he needed to inform the Tribunal again about this address. He pointed out that according to the case note of the telephone conversation of 8 September 2006 his agent had spoken to the Minister’s lawyer who had a record of the second Campsie address. The applicant took issue with the fact that the Tribunal did not contact him at the second Campsie address.
In a further affidavit sworn on 17 March 2009 the applicant explained his delay in applying to the Court for judicial review of the 2006 Tribunal decision and claimed that he thought informing the Minister’s solicitors about his new address in the earlier Court proceedings amounted to informing the Tribunal.
The first respondent initially submitted that the application was incompetent on the basis that it was out of time under s.477 of the Migration Act 1958 (Cth) as it stood at the relevant time. It was acknowledged that under s.477 the time commenced to run from the date of “actual notification” of the Tribunal decision (see Minister for Immigration and Citizenship v SZKKC and Others (2007) 159 FCR 565). The first respondent made extensive oral and written submissions on this issue but after the initial hearing was adjourned counsel for the Minister informed the Court that the challenge to the competency of the application was no longer pressed.

Third party fraud

As set out above, in his review application the applicant alleged fraud on the part of his former migration agent. He did not elaborate on these claims in oral submissions. Counsel for the first respondent submitted that although the applicant contended that he did not receive the second Tribunal decision or other correspondence from the Tribunal by reason of his migration agent’s fraudulent conduct, no such conduct was alleged in respect of the period after 6 September 2006 and that none of the matters alleged by the applicant disclosed fraud on the part of the migration agent prior to this time (see Minister for Immigration and Citizenship v SZLIXand Another (2008) 245 ALR 501). It was contended that taken at its highest the applicant’s evidence may disclose oversight and/or negligence on the part of his migration agent, but that such conduct did not amount to fraud (see SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189 at [53] and SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [33]).
Counsel for the first respondent clarified that the submission was that there were two relevant timeframes, first the period up to 27 July 2006 (the date of the Tribunal’s letter to the applicant handing down the Tribunal decision) and secondly as at 6 September 2006 when the applicant and the adviser were informed of what had occurred on 27 July 2006 when the Tribunal specifically noted that it was not renotifying of the decision.
It was submitted that the only conduct pointed to on the part of the agent in relation to the 6 September 2006 letter was that the agent, perhaps wrongly, advised the applicant that it was out of time. She nonetheless suggested that he see a lawyer. As the first respondent submitted, this does not establish fraud in the sense considered in SZFDE. Further, insofar as the applicant seemed to suggest that the agent had required him to sign a form appointing her as both his agent and authorised recipient, it is apparent that the form signed only appointed the agent as a representative (specifically not as authorised recipient), thus enabling her to make enquiries on his behalf. The Tribunal, in error, sent the letter of 6 September 2006 to the agent “as authorised recipient”. This cannot be said to be attributable to fraud (or indeed any other conduct) on the part of the agent. Nor does it otherwise constitute jurisdictional error on the part of the Tribunal. I note that the applicant conceded that he received a copy of the letter of 6 September 2006.
In relation to the earlier period, the applicant contended that the adviser had been fraudulent in that she failed to inform the second Tribunal of the change of address (to the second Campsie address) so that he did not receive notification of the invitation to the Tribunal hearing. As submitted for the first respondent, the evidence before the Court does not disclose any fraudulent conduct on the part of the applicant’s migration agent. I note in this respect that neither the first nor the second Tribunal was notified of the appointment of any representative or authorised recipient until the notification of 4 September 2006. Taking the applicant’s evidence at its highest (and I note he was not required for cross-examination) all that could be said to be disclosed is at most an oversight or perhaps negligence on the part of the adviser consisting of a failure to notify the Tribunal as reconstituted of the applicant’s second Campsie address (see SZFDE at [53] and SZFNX at [33]). There is no evidence from which any inference as to a motivation for any fraudulent dealing on the part of the agent with the applicant or the Tribunal can be discerned (see SZLIX at [33]). To the contrary is the evidence of the agent’s contact with the Tribunal in September 2006. Fraud in the sense considered in SZFDE is not made out.

Whether Tribunal sent the hearing invitation to the applicant within s.441A of the Act

The applicant contended that he informed the Court and the Minister’s solicitor of his new address during judicial review proceedings and that this was sufficient to provide that address to the Tribunal.
In written submissions the first respondent submitted that although the applicant contended that he informed the Minister’s solicitors of his second Campsie address during the first Court proceedings there was no evidence that he had informed the Tribunal of this address. On that basis the last address he provided to the Tribunal was said to be the first Campsie address contained in the 2005 application for review. This was the address to which the Tribunal sent the hearing invitation and other correspondence. It was pointed out that pursuant to s.441A(4) the Tribunal was required only to send correspondence by post to the “last address for service provided to the Tribunal by the recipient” and submitted that sending the hearing invitation and other correspondence to such an address met the Tribunal’s obligations. It was also submitted that provision of an address to a court did not constitute notification to the Tribunal (SZMHJ v Minister for Immigration & Anor [2008] FMCA 1432 at [17] – [20]).
I raised several issues with counsel for the first respondent, in particular the issue of whether, given that Phillips Fox had stated in their letter to the applicant of 16 May 2006 that they acted on behalf of the respondents (that is the Minister and the Tribunal) in “this matter”, notification to the Tribunal’s solicitors during the first judicial review proceedings constituted provision of an address for service to the Tribunal. The hearing was adjourned. The first respondent provided further submissions addressing the issues of whether the Tribunal had sent relevant correspondence (including its hearing invitation) to the applicant’s last address for service within the meaning of s.441A(4)(c)(i) of the Migration Act and whether the Tribunal was required to re-exercise its discretion under s.426A of the Act to reschedule the hearing.

There is no evidence before the Court that in the earlier judicial review proceedings the applicant filed and served any notice of change of address advising the Court of his second Campsie address or as to exactly how or when Phillips Fox was notified of the second Campsie address.
The applicant’s unchallenged evidence is that he notified the court of his second Campsie address “[d]uring the court proceeding” and that this was used by the solicitor for the Minister (affidavits of 3 October 2008 and 20 January 2009) and that on 3 April 2006 the matter was remitted and he assumed that the Tribunal would send letters “to my most recent address I provided to the court and the minister’s solicitor” (affidavit of 20 January 2009). The letter Phillips Fox sent to the applicant at the second Campsie address on 16 May 2006 (after the matter was remitted by consent) enclosing sealed final orders “by way of service”, was sent by them in their capacity as solicitors for both respondents (the Minister and the Tribunal) in the judicial review proceedings.
It is apparent from this evidence that the applicant’s claim is that he provided his “new” address to the Court and to Phillips Fox during the course of the prior judicial review proceedings in this Court. This is not disputed by the first respondent. I am satisfied that the applicant in some way notified Phillips Fox that the second Campsie address was his new address during those proceedings, although I am not able, on the material before me, to make any more precise findings as to exactly when or how this occurred. There is no evidence of any notice of change of address of other written notification. The Tribunal did not become a party to the judicial review proceedings until the date the orders were made remitting the matter to the Tribunal.
The applicant attested that he thought that the Minister’s solicitors represented the Tribunal in the Court proceedings so that informing the Minister’s solicitors about his new address was the same as informing the Tribunal about it (affidavit of 17 March 2009).
However, counsel for the first respondent contended that the Tribunal’s correspondence, including its invitation to the hearing, was correctly sent to the last address provided by the applicant to the Tribunal. It was submitted that the language of s.441A(4)(c)(i) was unambiguous, in that the Tribunal was permitted to dispatch correspondence to the “last address for service provided to the Tribunal by the recipient in connection with the review” (emphasis added). Reference was made to SZKHY v Minister for Immigration & Anor [2007] FMCA 1771 in which the applicant had submitted that a Tribunal should be taken to have constructive knowledge of a change of address where notification of change of address had been sent to the Department of Immigration. Nicholls FM stated at [12]:
Such a proposition ignores the separate entities involved in that matter. In any event, this proposition was put to the Court without reference to any relevant authority in support. As was also submitted on behalf of the Minister, such a proposition is contrary to the provisions and the plain language of s.441A(4)(c)(i) of the Act.
It was also submitted that in this case the Tribunal’s record, which was said to be before the Court in the form of the Court Book, did not disclose that the applicant had informed the Tribunal that his address for service was the second Campsie address and that as there was nothing in the Tribunal record that established that the Tribunal had been informed of the applicant’s new address, the Tribunal was not required to dispatch correspondence to that address.
Insofar as the applicant relied on information provided to the Court during the previous proceedings before this Court, it was submitted that there was no evidence that this information was provided by the applicant to the Tribunal within the meaning of s.441A(4)(c)(i) of the Act. It was said to be important that there was no evidence that this information was before the Tribunal or constituted part of the Tribunal’s record and contended that it would be impermissible to determine whether the Tribunal engaged in jurisdictional error by reference to the record of another court and by reliance on documents that did not constitute the Tribunal’s record (see Craig v The State of South Australia (1995) 184 CLR 163).
In any event, it was submitted that to the extent the Court did have regard to the record of the first FMC proceedings, the Tribunal did not become a party to those proceedings until Lloyd-Jones FM granted leave to join the Tribunal as the second respondent on 3 April 2006, the day on which consent orders were made by his Honour remitting the matter to the Tribunal (notwithstanding the filing of an earlier notice of appearance by Phillips Fox on 20 September 2005 on behalf of the Tribunal).
It was said to be relevant that the submitting appearance filed for the Tribunal by Phillips Fox in the earlier proceedings in this Court had the effect that the Tribunal played no active role in the proceedings other than on the question of costs (see for example Hillig v Darkinjung Pty Ltd & Ors [2008] NSWCA 75, SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 at [43], [91], [153] and [180] and The Queen v The Australian Broadcasting Tribunal and Others; Ex parte Hardiman and Others (1980) 144 CLR 13).
Reliance was also placed on SZMHJ v Minister for Immigration & Anor [2008] FMCA 1432 (at [17] – [20]) in which Emmett FM held that notification of a change of address to a court did not fall within the purview of s.441A(c)(i) of the Act. In reaching this decision Emmett FM took the applicant’s reference to providing his new address “to a higher court” to mean that he gave this address on the application for judicial review filed in the Federal Magistrates Court as his address for service (at [18]). At that time the Tribunal was not a party to the proceedings (SZMHJ at [19]) and there was no suggestion that the address was provided to the solicitors for the Tribunal in their capacity as solicitors for the Tribunal.
Counsel for the first respondent pointed out that there was nothing in the Migration Act or Regulations that required a court to inform the Tribunal of any change of address and submitted that the Tribunal could not “second guess” the applicant’s correct address but ultimately had to rely on its own records as provided by the applicant. It was submitted that this was why the Migration Act in s.441A(4)(c)(i) placed responsibility on the applicant to inform the Tribunal of a new address, as this left no room for doubt and no room for any presumption of imputed knowledge which may invariably lead to error. It was submitted that under the Migration Act the applicant bore this responsibility and that no other view was open on either a textual consideration of s.441A of the Act or at a practical level.
The critical issue in this case is whether the Tribunal as reconstituted sent the hearing invitation of 2 June 2006 to the applicant at an address provided to it by the applicant within s.441A(4) in compliance with the Migration Act. Under s.425(1) of the Act the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Under s.425A if the applicant is invited to a hearing the Tribunal must (relevantly) give him or her notice of the day, time and place for the hearing “by one of the methods specified in section 441A” (s.425(2)(a)). Section 441A specifies methods by which the Tribunal is to give documents to a person. Relevantly, s.441A(4) was as follows at the time in question:
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;
…
It is, as Gilmore J stated in SZBHU v Minister for Immigration & Citizenship [2007] FCA 1614 at [65], for the first respondent to establish that the hearing invitation letter was sent in accordance with s.441A of the Act. No issue was taken with whether the hearing invitation was dated and dispatched by prepaid post within three working days of its date as required in paragraphs (a) and (b) of s.441A(4). It is not disputed that the hearing invitation was dispatched to the applicant at the residential and mail address provided in his review application of 25 February 2005. The first respondent contended that this was the last address for both service and as a residential address provided to the Tribunal by the applicant in connection with the review and that it was not necessary for the Tribunal to send the hearing invitation to the address provided to the Court and to Phillips Fox in connection with the judicial review proceedings. There is no evidence that the solicitors informed the Tribunal of the second Campsie address and I am told that there is no indication on the Tribunal file that the Tribunal itself had any information as to the applicant’s second Campsie address prior to its decision.
If the hearing invitation letter was not dispatched to one of the addresses specified in s.441A(4) the letter would not be deemed to have been received under s.441C(4) of the Act. If that were the case the precondition in s.426A(1)(a) on the exercise of power by the Tribunal would not be fulfilled. There would not have been compliance with s.425 or s.425A of the Act and the decision would be affected by jurisdictional error.
The Tribunal’s hearing invitation letter was dispatched to the applicant at the only address he provided in the original application for review. There was no authorised recipient so the “recipient” in s.441A(4) was the applicant. A copy of that letter was also sent to the address contained on his judicial review application.
Consistent with the approach taken by Emmett FM in SZMHJ (at [17] – [20]), I accept that provision of an address to a court is not provision of an address to the Tribunal within s.441A(4), although I note that in SZMHJ the Tribunal was not a party to the judicial review proceedings at the time the applicant provided a new address to the Court (on the application for judicial review) and the issue of provision of an address to solicitors for the Minister and/or the Tribunal did not arise for consideration.
Moreover, harsh though it may be for an applicant, I consider that I am bound to accept that provision of an address to the Department of Immigration (at any time) is not provision of that address to the Tribunal by an applicant in connection with the review. According to SZKHY, the Tribunal is not to be attributed with constructive knowledge of a change of address notified to the Department for the purposes of notification of an invitation to a hearing under the Migration Act. An appeal from SZKHY was dismissed in SZKHY v Minister for Immigration and Citizenship [2008] FCA 206. Graham J accepted (at [12]) that it seemed clear that the appellant had notified the Department of Immigration of changes to her residential address and address for correspondence while her review application was before the Tribunal. However his Honour was of the view that the applicant did not notify the Tribunal of any change to her mailing address. In those circumstances Graham J found no jurisdictional error in the Tribunal’s invitation to attend a hearing being directed to the appellant at the mailing address she had provided to the Tribunal. Implicit in these findings is an acceptance by the Federal Court that provision of an address to the Department of Immigration is not provision of the address to the Tribunal within s.441A(4), notwithstanding that the Tribunal may be in the course of reviewing a decision of a delegate of the Minister for Immigration and Citizenship.
Consistent with these decisions, the provision of an address to the Department, the Court or even to solicitors acting as solicitors for the Minister would not amount to provision of an address to the Tribunal by the applicant in connection with the review.
However, I do note that insofar as the first respondent contended that regard should only be had to the record of the Tribunal for the purposes of determining whether the Tribunal met the requirements of s.441A, the issue before the Court is not whether the Tribunal “received” notification of the second Campsie address, but rather whether the applicant “provided” that address to the Tribunal as an address for service or residential or business address in connection with the review. The approach contended for by the first respondent would mean that if the Tribunal misplaced a clear written notification provided directly to it by an applicant in connection with the conduct of a review regard could not be had to such notification because it would not appear in the Tribunal’s “record”. While the Tribunal’s record may be the starting point, there must be circumstances in which the Tribunal’s record is not a conclusive indication of whether certain information has been provided to it, at least where there is other evidence in that respect before the Court.
In this case the evidence before the Court of the most recent address on the Tribunal file is the address specified by the applicant in the original application for review dated 23 February 2005, although the Tribunal recorded that it also had the address provided on the judicial review application. The Court Book does not contain any documentation or correspondence informing the Tribunal that the Court had remitted the matter to it for reconsideration (other than a copy of the orders of Lloyd-Jones FM). It can however be inferred that the Tribunal received or obtained some information about the review by this Court not contained in the Court Book, as it referred to the address the applicant provided to the Court on 30 May 2005 as the address for service in connection with the application for judicial review and the mobile telephone number recorded on the application to this Court and must have been informed that the matter had been remitted. The Court Book is not a complete record of the Tribunal file.
What is clear on the material before the Court is that there is no evidence or suggestion that Phillips Fox notified the Tribunal of the address provided to them by the applicant during the judicial review proceedings.
The applicant in this case did not simply rely on having provided his address to the Court. There is no issue of relying on the Court record to determine whether the Tribunal fell into jurisdictional error. What arises for consideration is not whether notifying the Court of a change of address amounted to notification of the Tribunal, but whether notification to the solicitors for the Minister during judicial review proceedings, in circumstances where those solicitors also acted for the Tribunal which became a party on the day the matter was remitted, was provision of that address to the Tribunal by the applicant for the purposes of the review within s.441A(4).
The Tribunal was not joined as a party to the judicial review proceedings until the date on which the consent orders were made (3 April 2006). In the letter of 16 May 2006 the solicitors for the Tribunal clearly indicated to the applicant that they were acting on behalf of “the respondents”, including the Refugee Review Tribunal, and wrote to him in that capacity by letter sent to the new address. Counsel for the first respondent stressed that the Tribunal had played no active part in the review proceedings save on the question of costs. On that basis it was suggested that anything done in relation to the Tribunal other than on the question of costs and after the date of joinder was ineffective.
The fact that the Tribunal had entered only a submitting appearance in the court proceedings does not resolve the issue of whether notification to the solicitors who later acknowledged they acted for the Tribunal amounted to providing an address to the Tribunal in connection with the review within s.441A. However, the Tribunal did not become a party to the judicial review proceedings until 3 April 2006. Even if notification to solicitors for the Tribunal while it was a party to judicial review proceedings could constitute notification to the Tribunal within s.441A(4), notification to solicitors in their capacity as solicitors for the Minister in the judicial review proceedings would not constitute provision of an address to the Tribunal, just as notification to the Department would not constitute notification to the Tribunal (see SZKHY).
Section 441A(4) of the Migration Act does not specify the manner in which an applicant may provide an address for service to the Tribunal in connection with the review. In SZBHU v Minister for Immigration & Citizenship [2007] FCA 1614 Gilmour J suggested that it would be sufficient if this were done orally by an applicant. Hence, although there is no evidence before the Court as to how or precisely when (apart from the fact that it was during the proceedings) the applicant advised Phillips Fox of his new address, the absence of written notification would not mean that any oral notification could not come within s.441A(4). The difficulty for the applicant is that, however such notification occurred, the applicant did not provide the address to the Tribunal itself or to solicitors acting for the Tribunal in its capacity as a party to the judicial review proceedings, let alone acting for the purposes of or in connection with the review by the Tribunal of the protection visa decision.
The first respondent also contended that the only way the applicant could provide the Tribunal with an address within s.441A(4) was by providing it directly to the Tribunal and not via its solicitors. It was conceded that this would mean that if an applicant had sought judicial review of Tribunal proceedings then, notwithstanding any notification of change of address to the Tribunal’s solicitors during the course of such judicial review proceedings, he or she would have to notify the Tribunal directly of his or her current address immediately upon remittal by the Court. The applicant did not provide the second Campsie address directly to the Tribunal at any time prior to its decision.
This issue raises the question of the proper construction of s.441A and its relationship to other sections of the Act. Having regard to the ordinary meaning of the words in s.441A, the purpose of the section and its place in the Migration Act, even if in some circumstances an address can be “provided to the Tribunal” by providing it through an agent or intermediary acting for the Tribunal (such as solicitors), when s.441A is considered in the context of Part 7 of the Act (the Part to which s.441A applies) it is clear that the address must be provided “in connection with the review” and that the “review” in question is the review by the Tribunal of a protection visa decision. That is the “review” to which Part 7 applies. Such an interpretation is consistent with the operation of s.441G which applies where an applicant has authorised a person to do things on behalf of the applicant “that consist of, or include, receiving documents in connection with the review” (that is, the review by the Tribunal of a protection visa decision), as well as with the substantive obligations in Division 4 of Part 7 which apply to an “applicant” for “review” (see s.423, 424(1), 424A (particularly 424A(3)(b)). In Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at [17] a distinction was drawn (in the context of s.424A) between an application for “review” by the Tribunal of a Ministerial decision and (in that case) an application for a protection visa. This suggests a restrictive approach to the concept of “review” within Part 7 of the Act. Relevantly, s.426A, which deals with the powers of the Tribunal if the applicant fails to attend a s.425 hearing, also refers to the Tribunal making “a decision on the review”. Moreover, s.441A has no application to Part 8 of the Act which deals with judicial review.

It is not however, necessary in this case to determine whether an address provided to the Tribunal’s solicitors after joinder of the Tribunal as a respondent to judicial review proceedings or after remittal by the Court would be provision of an address to the Tribunal in connection with the review within s.441A(4). I am of the view that, consistent with the language of s.441A(4) and the approach taken by Graham J in SZKHY, in the context of s.441A the expression “provided to the Tribunal by the recipient in connection with the review” does not extend to the provision of an address to the solicitors for the Minister during and for the purposes of judicial review proceedings to which the Tribunal did not become a party until after the address was provided to the solicitors, notwithstanding that those solicitors also acted for the Tribunal.
The first respondent has established that the hearing invitation letter was addressed to the last address for service (which was also the last residential address) provided to the Tribunal by the applicant for the purposes of the review when it was sent to the first Campsie address provided in the application for review. It met the requirements of s.441A. Dispatch is not in issue. Hence there was no failure to comply with s.425 or s.425A of the Act.
As there was no failure to invite the applicant to a hearing in accordance with the statutory provisions in the Migration Act, the Tribunal was entitled to proceed to determine the application in accordance with s.426A of the Act. It was not obliged in such circumstances to accept the applicant’s claims or to bring to his attention matters which caused it not to be satisfied of his claims (see S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492 at [27]).
The Tribunal was entitled to exercise its discretion under s.426A to proceed to make a decision. It is clear from its decision that it considered the exercise of its discretion. In fact it attempted alternative methods of contact with the applicant. It did not err by determining to make a decision rather than delaying the decision and giving the applicant a further opportunity to appear. Insofar as the applicant intended to assert that the Tribunal was obliged to give the applicant a further opportunity to appear after he contacted it in September 2008, by that time the Tribunal had made and handed down its decision and was functus officio. This is not a case of the nature considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
I note also that, as the Full Court of the Federal Court stated in Minister for Immigration and Multicultural and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439, the Tribunal having complied with one of the methods prescribed in s.425A of the Act “was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant” (at [39]).
In fact in this case the Tribunal did so, sending a copy of the invitation to the address provided on the judicial review application and attempting to contact the applicant by phone. The fact that it chose to take these further steps does not alter the fact that it had met its obligations to invite the applicant to a hearing by dispatching that invitation to the address provided on the application for review.
Nevertheless, of concern is the fact that a protection visa applicant may understandably assume that notification of a change of address to solicitors who later acknowledged they acted for the Tribunal would suffice as notification to the Tribunal. Indeed, had the Tribunal in this case received notice of the second Campsie address from its solicitors, it may well have written to the applicant at that address out of an abundance of caution. These may be matters to be considered by or raised with the Minister (see s.48B of the Act). However as they do not establish jurisdictional error and as no such error is established on any other basis the application must be dismissed.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 22 July 2009