SZHIL v Minister for Immigration
[2007] FMCA 654
•14 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHIL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 654 |
| MIGRATION – RRT decision – late application to Tribunal – delegate’s notification sent to address shown in visa application – neither applicant nor agent gave notice of new address for receiving documents – application for mandamus dismissed. |
| Migration Act 1958 (Cth), ss.52, 66, 412(1)(b), 483A, 494(4), 494B, 494B(4), 494C Migration Regulations1994 (Cth), rr.2.13, 2.16, 4.31 |
Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407
VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570
Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550
SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
| First Applicant: | SZHIL |
| Second Applicant: | SZHIM |
| Third Applicant: | SZHIN |
| Fourth Applicant: | SZHIO |
| Fifth Applicant: | SZHIP |
| Sixth Applicant: | SZHIQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2947 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 14 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2947 of 2005
| SZHIL |
First Applicant
| SZHIM |
Second Applicant
| SZHIN |
Third Applicant
| SZHIO |
Fourth Applicant
| SZHIP |
Fifth Applicant
| SZHIQ |
Sixth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 13 October 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of certiorari to quash a decision of the Refugee Review Tribunal made on 19 September 2005 that it did not have jurisdiction to entertain an application for review lodged by the applicants on 9 February 2005, and mandamus to compel it to exercise its jurisdiction in relation to that application.
In their application to the Tribunal, the applicants had requested the Tribunal to review a decision of a delegate made on 27 October 2004, refusing applications for protection visas made by the applicants. The primary visa applicant is the mother in this family, and has represented the other applicants in her submissions and evidence. I shall refer to her as “the applicant”.
The Tribunal declined jurisdiction upon a finding that the application for review was lodged outside the inflexible 28 day time limit provided by s.412(1)(b) of the Migration Act and r.4.31 of the Migration Regulations1994 (Cth). It considered that this period had commenced to run on a date 7 working days after the date of the delegate’s decision, upon evidence that notification of the decision had been sent by registered post on 28 October 2004, addressed to the primary applicant at the address for correspondence which she gave in her visa application. The Tribunal considered that the applicants were deemed to have been notified of the decision, even if they did not receive actual notice, by reason of the provisions of ss.66, 494B, 494C and reg.2.16. The mandatory nature of the time limit, and the effectiveness of the deemed notification provisions, have long been established (see Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407; VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 at [33]; Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 at [24]; Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550; and SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 485).
Under s.66(1) of the Act, the Minister must notify the applicant of the decision refusing to grant a visa “in the prescribed way”. Migration Regulation 2.16 requires notification to be “by one of the methods specified in section 494B of the Act”. In the present case, the delegate’s decision was posted in accordance with s.494(4) to an address at Park St, Campsie, given in the applicant’s visa application, on the basis that this address was “the last address for service provided to the Minister by the recipient for the purposes of receiving documents” or “the last residential … address provided to the Minister by the recipient for the purposes of receiving documents” within that provision.
The applicant does not challenge that this would not have been due service from which the time for appeal commenced to run, except by challenging that the Park St address was, in fact, the “last address” provided to the Minister at the time of the posting of the notification on 28 October 2004. She argues that an address at Beaumont St, Campsie, had been “provided to the Minister for the purposes of receiving documents” before that date, and that the appeal to the Tribunal was brought within the time limit when calculated from 13 January 2005, when a copy of the notification was sent to the new address.
The applicant presents evidence seeking to establish that she provided her new address before the original notification was posted on
28 October 2004, either:
i)by written notification of a change of address made to the Department of Immigration during September 2004 by a person, Mr Om who, unknown to the Department of Immigration, was employed by the applicant to assist her to make the visa application; or
ii)by oral statements made by the primary applicant to a counter officer at a Parramatta office of the Department of Immigration on 23 October 2004, when she presented her passport for stamping with a bridging visa.
It was common ground between the parties that I should myself determine whether either of these things happened, as jurisdictional facts going to the Tribunal’s duty to exercise its review jurisdiction. It was not contested by the Minister that her application to the Tribunal would have been within time and that a writ of mandamus would appropriately be ordered, if I found that the applicant did provide the Minister with a new address for receiving documents before
28 October 2004.
The evidence on the Department’s files
The applicant’s visa application disclosed no person assisting its making, did not appoint a migration agent, and answered “no” to the question “do you want to authorise another person to act and receive communication about this application on your behalf”. It gave the applicant’s “current residential address in Australia” and “current postal address in Australia” as an address in Park St, Campsie. It purported to contain a declaration and undertaking signed by the applicant and witnessed by a JP, which included: “I undertake to inform the Department of Immigration and Multicultural and Indigenous affairs if I intend to change my address for more than 14 days while my application is being considered”.
The application form indicated that the applicant was a Korean national who had previously resided in Canada and New Zealand, and spoke, read and wrote English. She confirmed these capacities to me in her evidence, although it was apparent that she has a speech impediment which at times causes her significant difficulties of oral communication.
A letter dated 22 September 2004 was sent to the applicant at the Park St address, which confirmed receipt of the visa application. Among other things, it reminded the applicant to notify the Department of any change of address, and told her that she was eligible for a bridging visa class C with a “no work” condition. These parts of the letter said:
The address given in your application has been recorded as the place to which all correspondence relating to your application will be sent.
· You can nominate one other person to receive letters and notifications about your application. You will need to tell DIMIA this person’s address. If the person you nominate charges you for advice, they must be a registered migration agent. Use form 956 Authorisation of Person to Act and Receive Communications available from any DIMIA office. No information will be given to unauthorised persons.
· If you change your address for more than 14 days, you must tell DIMIA your new address and how long you intend to be there. Use form 929 Client Change of Address available from any DIMIA office. If you do not inform DIMIA when you change your address, you will be taken to have received letters and notifications about your application sent to the last address you have given the Department.
Your Immigration status while this application is being processed.
The protection visa application you have lodged also serves as an application for a Bridging visa. If you are eligible for a Bridging visa. You have been found to be eligible for a Bridging visa Class WC with condition 8101 – No work.
This Bridging visa provides you with lawful status in Australia while your application for protection is being processed. This Bridging visa remains valid for 28 days after your application is finally determined (an application is finally determined when the decision made on the application is no longer subject to any form of merit review or if the deadline for applying for review has ended).
Your Bridging visa will come into effect when granted, unless you hold a substantive visa in which case it comes into effect when that visa ceases. If you require further information on the condition that of your Bridging visa please call the telephone number provided in this letter. Please also find attached the form ‘Bridging Visas’ containing general information about different classes of Bridging visas. (emphasis in original letter)
There is no evidence in any record of the Department of Immigration that the applicant, or anyone on her behalf, ever communicated, orally or in writing, to the Department a change of address prior to the dispatch of the notification of the delegate’s decision by registered post on 28 October 2004. If this was due notification, the prescribed period for an appeal expired on 5 December 2004.
The first recorded change of address is noted in the Department’s computer data base as being notified on 21 December 2004. The evidence is obscure as to how this came about, but it appears likely that it was the result of the receipt in the Department on 15 December 2004 of an application by the applicant for bridging visas class “A” for herself and for her husband. This made reference to her protection visa file and stated her “current residential address” as then being an address in Beaumont St, Campsie. The application appears to be completed in the same handwriting as the substantive visa application, and indicated that it seeks bridging visas to allow permission to work. Once again, it denied any assistance was received from an agent or other person.
The decision notification letter sent to the Park St address was returned to the Department on 5 January 2005. The copy of the envelope in the Court Book has obscurities, but appears to record attempts to deliver it at Park St, Campsie on 1 and 10 November 2004. The Department received no explanations from the postal service as to the subsequent delay in returning it.
The Department received on 4 January 2005 a letter dated
31 December 2004, which the applicant admits is signed by her, which stated:
We are writing to explain what happened to us. Our family made application for protection visa at the end of August. We received acknowledgment from the Department on September. We moved to our current address in September and we sent by letter to the Department about this.
Then we made enquiry to the Department through telephone in early November. The reason for that was because we were informed some letters were sent to us to previous address. We had chance to talk to one of senior officer and at that time we were informed that no letters was sent from the Department. Then we had conversation with the officer about the possibility of getting work permission. Since we had financial hardship the officer advised us to apply for work permission.
In December we made application for work permission and the response from the Department was shocking. After several telephone enquiries we were informed our visa application was refused on 27 October 2004.
We were wondering why the letter from the Department was sent to wrong address and further, when we telephoned in November the officer did not mention anything about the refusal.
We hope that new letter with new date will be sent to our correct address so we can practically respond to it.
A file note by the delegate dated 13 January 2005, recorded:
Mrs (applicant) has called me numerous times regarding the permission to work application (that was refused) and numerous times I have explained to her it was not my decision and referred her to the decision maker of that application.
Mrs (applicant) claims she notified the Department of her change of address in September 2004. There is no record on either ICSE or file of this notification and ICSE advises that the notification was on 21/12/04.
Numerous times I have explained to Mrs (applicant) that the Department records show that she had not notified of her change of address until 21/12/04 (refer to the two print outs from ICSE that precede this file note). The relevance of that is that a refusal letter was sent to her on 27/10/04 and she can no longer make an application for a review.
Mrs (applicant) advises that she learned of her Protection Visa refusal for the first time via telephone on 27/10/04 (I am not aware of who gave this information) this was the same day the decision was made.
In a letter dated 14 January 2005 that was received by the Department on 11 January 2005 Mrs (applicant) advises the following:
· She moved to her current address on 10/9/2004 and while she wrote to the Department about the change of address the letter never reached the Department. (The Department can only go on hard evidence and the hard evidence is that the change of address became officially known on 21/12/04)
· She spoke to me in November 2004 and advised of the new address and I never mention her case was refused. (I have no recollection of the phone conversation; however, my standard procedure is to advise the caller/applicant to put the new address in writing so for privacy reasons their signature can be compared to the one on the PV application; I then make a file note and an icse note to the effect that a change of address is pending etc. There normally is no safe way of determining over the telephone that the caller is actually the client. Advising a PV decision over the phone is not appropriate when there is not certainty who you are talking to. The decision letter had not been returned to the Department at that point of time).
· On 24 December 2004 she claims I told her the decision on the protection visa was not made by me. (Mrs (applicant has a speech impediment and it is difficult communicating with her. I advised her I did not make the decision on the permission to work application. My signature is on the PV refusal therefore it would not make sense to say I did not make that decision).
· On 11 January 2005 she came to the office to see me but I told her I was not in the office and claims I do not want to see her. (On Tuesday 11/01/05 I was on HBW and advised Mrs (applicant) correctly that I was not in the building. I further advised that I will be in the building next on Thursday 13/1/05. I advised her to put the matter in writing then telephone x4527 and ask for Mrs Overton who will get the letter and put it on my desk. After speaking with Mrs (applicant) I telephoned Mrs Overton and advised her about this).
· She would like a refusal letter with a new date. (It is not possible to provide a refusal letter that enables Mrs (applicant) to make an application for review of the PV decision. The PV decision was made on 27/10/04 – the Department records show that written advice of the new address was provided on 21/12/04. Even taking into account that I was told on the phone – this was after the refusal date of the PV, and was unconfirmed oral advice and the refusal letter had not been returned to the Department. An interesting thing about the return of the refusal letter is that it arrived on my desk today (13/1/05) and was received by the Department on 5 January 2005. Apart from the coincidence that it should turn up on my desk today it is unusual that a letter sent on 27/10/04 would take so long to be returned to the Department).
A copy of the original decision letter and decision record will be posted to Mrs (applicant).
The letter from the applicant dated 14 January 2005, which is referred to in the above file note is in the same hand writing as the previous documents. It asserted:
I refer to my protection visa application. We lodged protection visa application to your office. After that we moved to out current address on 10th September 2004. We sent letter to the Department about that. We now know that for some reasons that letter never reached to your office. But the important thing is that we have never received your refusal letter on 27th October 2004.
In November 2004 I made telephone enquiry directly to you. At that we mentioned the change of address. You never mentioned anything about the refusal. You advised us to lodge an application for work permission.
The application for review which was lodged with the Tribunal on
9 February 2005, was accompanied by a letter from Joon K Om, claiming to be a registered migration agent trading as Immanuel Visa Consulting. It asserted:
We are submitting an application for review of DIMIA decision on behalf of Mrs (applicant). All correspondence relating to this application should be forwarded to our office.
With this application there are a few points we would like to clarify.
The final letter from DIMIA dated 27 October 2004.
But Mrs (applicant) mentioned she sent form 929 to notify the change of her address. However, the letter seems not to have reached to DIMIA office.
But in early November she made telephone enquiry to her case officer. At that time she found out the Department does not have her new address details.
But she had conversation with the officer about application for work permission. The officer advised her lodge the application with the new address and she did it early December 2004. The application was rejected and at that time she noticed that her protection visa application was refused on 27 October 2004. Mrs (applicant) claims that the DIMIA officer should have advised her that her application was refused.
After a few enquiries to the officer she received the decision letter on 17 January 2005. The letter was sent 14 January 2005. Mrs (applicant) claims that the date of the decision letter should be considered as 14 January 2005.
On 23 February 2005, the Tribunal received notice from the applicant that “I have terminated my previous migration agent, Joon K Om’s migration services on my behalf. In the meantime, I will handle this case myself with the assistance of my Church friend (retired solicitor). Please send all correspondence to me to (the Beaumont St address)”.
The applicant’s evidence to the Court
In her affidavit sworn on 29 January 2007, the applicant said:
·“A person called Mr Om helped me to prepare the (protection visa) application”. She was then living in Beamish St, Campsie, but was planning to move to the Park St address which was shown in the application.
·“Shortly after I lodged the application”
she was told that she could not move there, and moved to a Beaumont St address on
10 or 11 September 2004. Before that move, she informed
Mr Om and requested him to inform the Department of Immigration. He said “I will inform the Department”.
·She received the Department’s letter dated 22 September 2004, which confirmed receipt of the application and the grant of a bridging visa C, because the landlord at the Park St address informed her of its arrival. She “took it” to Mr Om, and queried why it was sent to that address. He said: “I notified the Department of your current address. Maybe they made a mistake. However, it does not matter.”
·On about 23 October 2004 she went with her husband and children to the office of the Department at Parramatta “to get the bridging visa C”. At the counter, she told “the woman” her name, her Beaumont St address, and her phone number. She gave the Department’s letter to the woman. She said: “As I gave the woman this information, I could see her typing on a keyboard which appeared to be connected to a computer and computer screen”. The applicant does not suggest that either she or the woman commented upon a change of address. The woman told her: “you get a bridging visa A, not a bridging visa C”, and “stamped a bridging visa A into my passport”. They also had a conversation about getting a work permit for the applicant’s husband, in the course of which the woman telephoned the delegate and corrected his telephone number shown on the Department’s letter.
·She was told “a few days later” by the landlord from the Park St address that another letter had arrived from the Department. She delayed collecting it until “about two to three weeks later”, and then was told that it had been returned to the post office. Implicitly, she suggests that this was the delegate’s notification of his adverse decision.
·In the first week of November she spoke to the delegate on the phone, and queried whether the Department knew her new address. He said: “Could you please write your new address on a change of address form, sign it and send it to my office”.
·Mr Om was present when she made this call, and said to her: “I have already sent a change of address form to the Department. I do not understand why they ask again.” He had a change of address form with him, which she signed and he stated that “he would send it to the Department”.
·“A few days later”, Mr Om helped her prepare an application for a work permit, which he forwarded to the Department.
·She first became aware of an adverse decision by the delegate “in late November 2004”, but cannot recall how this happened.
·Her letter dated 31 December 2004, which was received by the Department on 4 January 2005 (see above at [14]), was prepared by Mr Om and explained to her. “I was happy with Mr Om’s explanation and trusted him. I then signed the letter”. He also prepared, and “explained” to her, the unsigned letter received by the Department on 11 January 2005 (see above at [16]).
·Her affidavit denies the truth of those letters where they differ from her affidavit, but implies that she was aware of their contents when they were sent. She refers to terminating the services of Mr Om in February 2005, but does not explain why she now believes “he deceived me in relation to my application for a protection visa”.
The applicant’s evidence under cross-examination included the following points:
·Although she instructed Mr Om to make her visa application, she did not complete, read, nor sign the form. She trusted him to do all this correctly.
·She was aware that the Park St, Campsie address was given to the Department in the form. At that time they planned to move to the address in the next week, and Mr Om suggested that the address should be given to the Department.
·Mr Om told her that he would tell the Department of their new Beaumont St address, and “he told me he sent a letter”. She never saw the letter.
·She later terminated his services because “later I found out he lied so many times … and I couldn’t trust him any more”. He lied about “the address matter, and immigration department asked my husband to apply for working visa”.
·She was not sure whether the counter officer at Parramatta in fact noted any change of address, nor whether she recorded the Beaumont St address. “At the time I thought the immigration Department had my correct address”, given to it by her agent two months previously.
·When pressed on how sure she was that she had told the counter officer of her Beaumont St address, she said: “Because in Australia, wherever you are going, people want to confirm you are the person. They ask you your name, your address, your phone number, your date of birth. It is basic. And we went to the immigration department, six of us. So it was a commonsense, that even though we brought the letter from the immigration department, she asked me to confirm who we are, our address, name, telephone number, and date of birth.”
·At the time she signed her 31 December 2004 letter to the Department, “I understood the contents of the letter. And the problem is revealed slowly, so my trust to Mr Om is breaking up”.
Conclusions
I am far from satisfied that Mr Om ever forwarded to the Department a written notification of a change of address for service, or communicated such a change in any manner, prior to 28 October 2004. I am prepared to assume that I should not draw an adverse inference as to this from the absence of any oral or documentary evidence from Mr Om – although the evidence led by the applicant to explain the absence of such evidence is not compelling. However, on all the evidence before me, I find that it is more probable that Mr Om never made the communications which he undertook to the applicant, and which, at least until the end of October, she believed he had made.
This conclusion relies upon the following points:
·There is no suggestion of any such communication in any of the records of the Department.
·The Department’s file shows clearly that Mr Om, even if he was a registered migration agent, was deliberately keeping secret from the Department his involvement in the applicant’s visa application, and adopted what can be characterised, at least, as a cavalier approach to the completion and verification of the visa application.
·In neither of the two letters to the Department which Mr Om forwarded with the approval of the applicant, is there any suggestion that he had forwarded a change of address form to the Department on behalf of the applicant. Rather, he drafted letters which, as the applicant now admits, contained the false assertions that she herself “sent letter to the Department about this” when she moved to Beaumont St.
·
When filing the appeal to the Tribunal on 9 February 2005,
Mr Om did not claim to have notified the Department, but repeated the false claim that “Mrs (applicant) mentioned she sent form 929 to notify the change of her address”.
·The evidenced behaviour of Mr Om therefore points to the likelihood that, in fact, he was conscious that he did not himself communicate a change of address to the Department before the notification letter was posted.
·This appears strengthened by the applicant’s own opinion of her agent’s conduct. She admitted that she came to believe that he had lied to her about “the address matter”, as well as being a generally unreliable agent.
Turning to the alternative basis of the applicant’s case, I consider that there are two difficulties facing the applicant’s claim that she herself provided the Minister with a new address for service when she attended the counter at Parramatta on 23 October 2004. The first is that I am not satisfied that, in fact, she did refer to her new address on such an occasion. The second is that, even if I accept her evidence that this happened, I would not conclude from that evidence that her statements to the counter clerk amounted to “providing” the address to the Minister “for the purposes of receiving documents”.
The applicant’s claim to have attended during October 2004 a Departmental counter for the purposes of obtaining the stamping of a bridging visa in her passport was not explicitly challenged during her cross-examination. Although there was no evidence presented by either the applicant or the Minister which corroborated any attendance during October, her questioning assumed such an attendance and addressed whether, and how, she referred to her address on such an occasion. In this situation, I am prepared to accept that it is likely that the applicant did receive the Department’s letter dated 22 September 2004 notifying her that she was eligible for a bridging visa C, and that she did take that letter to the Parramatta office of the Department on or around 23 October for the purpose of obtaining the issue of the visa by way of stamping her passport.
However, on an assessment of all the evidence, I am not satisfied that the applicant said anything to the counter clerk which amounted to an oral communication of her Beaumont St address with an express or implicit request that this should be recorded and treated as her address for receiving documents from the Department. I am not satisfied that, in fact, the applicant even mentioned her current residential address on that occasion. This is because:
·The applicant made no suggestion of any such communication in any of the letters which Mr Om prepared and which the applicant approved. These falsely claimed that a written notice was given by the applicant to the Department. They claimed that the earliest oral communication of the new address occurred in telephone conversations with the delegate during November – after the relevant date. Notwithstanding that these letters were prepared by Mr Om, on the applicant’s own evidence to the Court their contents were discussed with her, and they were sent at a time when the difficulty facing an appeal must have been apparent to both her and Mr Om. The applicant is a strong minded woman, literate in English, and experienced in life in western countries. I consider that, if indeed the applicant had a memory of orally giving the Department notice of her new address during October, mention of this claim would have appeared in these letters.
·The delegate’s 13 January 2005 file note records claims by the applicant that “she notified the Department of her change of address in September 2004” – something which she has not claimed to the court. It notes her claims that the delegate was orally told the new address in November. It records no claim by the applicant that the Department had been orally notified during October.
·Mr Om’s submission which accompanied the review application made no claim of an oral communication of a new address during an attendance in October 2003, but repeated the false claims previously made. Even after she terminated Mr Om’s services, the applicant did not make this claim, but continued to rely upon the assertions in the previous correspondence.
·The claim that there had been an oral communication of a new address for service in October 2004 was first made after the present proceedings was commenced in October 2005 and only received its current form in an affidavit sworn on 29 January 2007.
·The contemporaneous records of the Department, which are in evidence, point against any communication of a new address prior to 28 October 2003. As the delegate’s file note points out, there is no documented record of any communication, and the Department’s computer data base does not record a change of address until 21 December 2004. The 15 December 2004 application for a work visa points towards this being the first communicated notice of a change of address for service which was received by the Department.
·Considering the applicant’s evidence to the court, the chronology of events given in her affidavit tends to compress time periods shown in Departmental records, and otherwise suggests a reconstruction of events rather than a clear recollection of what happened two years earlier. I formed a similar impression, of reconstruction rather than recollection, from the applicant’s oral evidence.
·In particular, I consider that her account of telling her address to a counter office is most probably a reconstruction, and I am not satisfied that this occurred, whether on 23 October 2004 or on any other date. I do not accept the applicant’s suggestion that she probably gave her current address for identification purposes, since she must have presented to the officer ample identification in the form both of the Departmental letter notifying the grant of a bridging visa and her own passport.
·
I consider it probable that during October 2004 the applicant did trust Mr Om, and believed that he had informed the Department of her new address. She admitted in evidence that she held that assumption when she attended the Parramatta office on
23 October. She therefore had no cause to believe that she needed to mention her address, nor to request a change in the recorded address for service.
·Considering the evidence broadly, I consider that the applicant and Mr Om attempted to rectify the problem after it came to her attention during December 2003. This included her approval of false claims of notification being made to the Department and Tribunal.
·
On all the evidence, I consider that the applicant’s current recollection of referring to her new address during a visit on
23 October 2004 is unreliable, and I am not satisfied that this happened.
Moreover, in my opinion, the applicant’s account of what she said to the counter clerk concerning her address did not amount to “providing” that address “for the purposes of receiving documents” within s.494B(1), even treating these words in a non-technical way and unfettered by the requirements of written communication to which I refer below. The applicant’s evidence, at its highest, was that reference to her address was made by her only in answer to a question which she thought was part of a process of identification prior to the issuing of a bridging visa. She did not claim, and I would not infer, that in fact the counter clerk took any notice of this particular response. She did not suggest that there was any comment by her or the clerk that her current residential address was not the same as the address on the Department’s letter given to the counter clerk. She did not claim that she suggested, or even thought, that she was providing her address so that it could be recorded as a current address for receiving documents. Looked at objectively, I do not consider that the situation described by her amounts to the communication of an address for that purpose.
I therefore do not accept either of the factual claims made by the applicant which seek to establish that the delegate’s letter notifying his decision on 28 October 2004 was posted to an address which was not the last address falling within s.494B(4)(c)(i)or (ii).
My above conclusions mean that it is unnecessary for me to decide whether, if the applicant did orally give her new address to the Minister for the purposes of receiving documents when attending at the counter in October 2002, this could amount to a legally effective communication under requirements raised by s.52 of the Act and reg.2.13. Section 52(1) requires that a visa applicant “must communicate with the Minister in the prescribed way”. Section 52(3) provides that a purported communication of “anything to the Minister in a way that is not the prescribed way” is “taken not to have been received unless the Minister in fact receives it”. Reg 2.13(2) requires that an applicant must communicate “in writing”, unless it comes within an exception in reg.2.13(3). The exceptions include “a communication about an application for a bridging visa”, and “an enquiry about the stage reached in the consideration of a visa application”.
The legal effect of these provisions, and their application in the present situation, was the subject of submissions by both counsel. There appears to be no authority on their operation, and their application in a factual situation of an attempted oral communication of a change of address for service when attending to obtain a bridging visa raises several difficult issues. I do not consider that it would be appropriate for me to enter into these issues upon a factual hypothesis which, as I have explained above, I do not accept.
For the above reasons, the applicant has not persuaded me that the Tribunal was incorrect when deciding that the application lodged on
9 February 2005 was out of time by reason of the due posting of the notification of the delegate’s letter dated 27 October 2004. I must therefore dismiss the application.
Postscript – the Minister’s application to re-open the hearing
The hearing of the application was set down for 12 February 2007 at a directions hearing held by me on 16 November 2005. The parties therefore had more than enough time to investigate and prepare their evidence relevant to the factual issues which I have indicated above. Although the applicant’s evidence received refinement immediately before the hearing, her original affidavit filed on 13 October 2005 clearly put the Minister on notice that she was alleging that she had provided a new address for service during an attendance at the Parramatta Office “during the last week of October 2004”.
However, at the conclusion of the hearing and at the end of his submissions, counsel for the Minister suggested that there were further enquiries which could be made into the Department’s records relevant to the claimed attendance. He did not then seek to re-open his case, nor seek an adjournment of the hearing. I announced that I would reserve my judgment, allowing one week for both counsel to lodge a supplementary legal submission as to the antecedents of an amendment to s.52 of the Migration Act. I expressly discouraged any expectation that I would give either party leave to present further evidence if that was sought.
After I had arrived at the above factual conclusions and written a large part of my judgment, the Minister applied to lead more evidence and resume cross-examination of the applicant.
The new evidence is an affidavit of a Departmental officer sworn on
2 March 2007, which presents further evidence as to the contents of the Department’s computer records and recording practices. The suggested effect of this evidence is that a visit by the applicant to obtain a bridging visa stamp did not occur in October, and that no notification of a change of address was received at that time. The evidence does not appear conclusive and might not significantly alter the effect of the evidence currently before the Court. I have not given the affidavit any attention when arriving at my above findings on the evidence which was admitted.
Reception of the new evidence was opposed by counsel for the applicant at a directions listing on 21 February 2007. He argued that the applicant would be prejudiced by allowing the Minister to re-open his case, in a manner which could not be answered by a costs order. He also made submissions identifying considerations of “the interests of justice” which may be relevant to allowing a party to re-open their case, citing Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471.
After hearing submissions on the Minister’s application, I announced that I refused the application, and that I would give my reasons when I gave judgment in the substantive application. I reserved costs in relation to the matter.
In my opinion, the interests of justice point clearly against allowing the Minister to lead the further evidence after the court had concluded the hearing and reserved its judgment. The proposed evidence could manifestly have been available to the Minister’s legal representatives at the hearing, and no explanation for its absence is offered other than that counsel at the end of his submissions first perceived the possibility of the investigation which produced it. It is speculative whether, if counsel had then applied for an adjournment to allow those investigations, I would have allowed it. However, I was firmly of the view that a resumption of the hearing after I had ended the hearing and reserved judgment was not justified.
I accept that the interests of justice may include the desirability that all parties, including officers of the Commonwealth, should be able to present all relevant evidence, so that the court is able to arrive at findings of fact which are not only correct on the evidence presented but are also true. However, in our adversarial model of civil litigation, perfection in the investigation of facts often must give way to the attainment of justice according to well-understood procedures directed at bringing closure to the presentation of evidence and finality to litigation. The present is not a situation where an application to re-open or adjourn was made after the closing of a party’s case but before the conclusion of the hearing and the reserving of judgment.
I do not consider that any ‘model litigant’ principles of the Commonwealth point in favour of allowing it greater latitude to re-open its case, as might appear to be the effect of a submission by the Minister’s counsel which explained the application by reference to these principles. Indeed, the depth of the Commonwealth’s pockets and the other resources available to its legal representatives suggest that it should be expected to perform its investigation of relevant evidence prior to a hearing, rather than after the hearing.
Notwithstanding the significant inconvenience to the Court and to the applicant of allowing the re-opening of the Minister’s case, and the lack of justification for the Minister’s failure to present the foreshadowed evidence prior to or at the hearing, I possibly might have allowed this if I thought that the new evidence could make a significant difference to the outcome of the proceeding. However, for reasons which I have explained above, and which I had already arrived at, before seeing the foreshadowed evidence, this is not the situation.
I therefore refused the Minister’s applications to present further evidence and to recall the applicant for further cross-examination in the light of the fresh evidence.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 14 May 2007
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