SZIAR v Minister for Immigration and Citizenship
[2008] FMCA 1348
•14 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIAR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1348 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – in judicial review proceedings Court cannot review Tribunal’s findings of fact or decision on the merits of an application – failure to comply with s.424B(2) by not specifying a period within which a request for information is to be answered does not amount to jurisdictional error – specification of an email address as a facility to be used for the reply to a s.424 request for information satisfies the s.424B(2) requirement to specify the way in which such a response is to be made – in cases where it is the Tribunal which is initiating contact with a third party for the purposes of getting information under s.424, the Tribunal’s initial inquiry to that third party does not fall outside the scope of s.441A and s.424(3)(a) if it is sent to an address known to the Tribunal through its own records or researches. |
| Migration Act 1958, ss.91R, 424, 424A, 424B, 441A |
| SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 |
| Applicant: | SZIAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3730 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 September 2008 |
| Date of Last Submission: | 15 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 October 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr G. Kennett |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3730 of 2007
| SZIAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was a Falun Gong practitioner. He claims to fear persecution in China because of his practice of Falun Gong. He arrived in Australia on 27 February 2005.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 14 April 2005 although the decision record is dated 14 September 2005. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 23 November 2005 which was quashed by order of this Court on 31 May 2007.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 18 of the Tribunal’s decision (Court Book (“CB”) pages 204 – 218). Relevantly, they are in summary:
Protection visa application
In a statement attached to his protection visa application, the applicant claimed that:
a)he was introduced to Falun Gong by a friend and began practising in March 1999 because of health problems. Within a few months, his medical problems either completely disappeared or were able to be controlled with medication;
b)on 20 July 1999 the Chinese authorities banned Falun Gong. One of his fellow practitioners did not stop exercising and was arrested, tortured by the police and forced to write statements of repentance. The applicant feared that he would be treated similarly and did not dare to continue his Falun Gong exercises; and
c)in February 2005 the applicant was sent to Australia by his company on a “business study tour”. Upon arriving in Australia he and a colleague bought a newspaper and rented a room in a private house. That evening the applicant saw his landlady performing Falun Gong exercises. The applicant and his “fellow traveller” subsequently joined her as pupils of Falun Gong at an exercise centre, studied the scripture of Falun Gong in the evenings and attended group studies on Fridays. On 6 March 2005 they were taken “to the consulate general to exercise true ideas”.
The applicant’s migration agent provided a photocopy of a faxed letter from John Deller, President of the Falun Dafa Association of New South Wales, dated 14 March 2005 stating that (in relation to the applicant and another named person appearing before the Tribunal): “I write to confirm that we know of the above Chinese gentlemen practicing [sic] Falun Gong with practitioners in Sydney”.
Tribunal as constituted on the first occasion
Attached to the applicant’s application for review was a submission from his migration agent reiterating some of the claims made by the applicant in his protection visa application. Also included were photocopies of photographs purporting to show the applicant’s participation in various activities, including handing out Falun Gong leaflets in Chinatown and protesting in front of the Chinese Consulate-General in Sydney.
The applicant appeared before the Tribunal on 31 August 2005 and made the following additional claims:
a)he practised Falun Gong in China from March-July 1999 and did so in a group of eight;
b)he never attended any large gatherings of Falun Gong practitioners while in China, was never arrested by the police for practising Falun Gong and never came to the attention of the authorities;
c)he stopped practising Falun Gong after July 1999 and did not even do the exercises in his home because he was scared that somebody would report him and he would be arrested. However, he continued to practise Falun Gong in his heart;
d)his physical ailments came and went after he ceased practising;
e)before coming to Australia he worked as a business manager for a privately owned equipment company. The company financed his trip to Australia to advance his technical knowledge of office equipment and facilities;
f)having been told by the landlady on his first night in Australia that it was possible to practise Falun Gong freely here, the applicant decided that he no longer wanted to work for the company but wanted to stay in Australia so that he could resume his practice of Falun Gong. As a result, he has not visited or inspected any office facilities since his arrival;
g)the applicant met his travelling companion, Mr L (a witness and also an applicant before the Tribunal), “in the company”. He did not know Mr L “before the company”;
h)the applicant did not have the landlady’s details before his arrival in Australia and had had no intention of remaining in Australia at the time of his departure from China; and
i)he began studying Falun Gong two days after arriving in Australia. A week later he went and joined the Falun Gong group at Parramatta which met on Fridays and was accompanied by his landlady, her brother and Mr L.
Three witnesses appeared before the Tribunal (including Mr L), all of whom gave sworn oral evidence that the applicant had attended Falun Gong groups in Sydney. In particular, the witnesses testified to having been in the applicant’s company on Fridays at Parramatta Town Hall where the group studied Falun Gong and on Sundays when they distributed Falun Gong material outside the Chinese Consulate-General in Sydney.
On 6 September 2005 the Tribunal received a post-hearing submission from the applicant’s migration agent submitting, amongst other things, that “the hearing was rendered useless by the sub-standard interpretation”.
The Tribunal scheduled a further hearing on 5 October 2005 to give the applicant an opportunity to comment on and correct any statements which he had made at the earlier hearing and which he believed had been incorrectly translated or misrepresented by the interpreter. The applicant commented on two issues, being the date on which he commenced work at the factory and the religious aspects of Falun Gong. The Tribunal then read the applicant a summary of facts as recorded by the Tribunal at the previous hearing and asked him to verify their correctness or otherwise. The only amendment the applicant sought to make was one which related to his ailments “getting worse” (as opposed to “coming and going”) after he ceased practising Falun Gong in July 1999.
At the hearing on 5 October 2005 the applicant further claimed that:
a)he if returns to China he will have to tell people the truth about the Communist Party and its persecution of Falun Gong followers and he will therefore be arrested;
b)he was unaware in July 1999 that Falun Gong followers who had been arrested in China had suffered persecution, although he was aware at that time that arrested practitioners were “re-educated”;
c)it was only after he arrived in Australia and began participating in Falun Gong activities that he discovered that practitioners were tortured in China; and
d)he did not join the Falun Gong groups in Australia to strengthen his claim for refugee status.
Tribunal as constituted on the second occasion
The applicant appeared before the Tribunal on 22 August 2007 and made the following additional claims:
a)he lived in Tianjin from 1958 until 2005 when he left China to come to Australia;
b)he knew Mr L in China and does not know why Mr L would say (in evidence at another Tribunal hearing) that he had only met the applicant on the plane coming to Australia;
c)he variously stated that:
i)he planned to go to Canberra to look at office supplies;
ii)he got off at Sydney airport and was planning to look at office furniture in Sydney;
iii)his boss told him to go to Sydney and Canberra;
iv)he got off at Sydney airport initially and was to meet a person to go to Canberra. He was not sure why there was no-one at the airport to met him – it was all organised by his boss; and
v)he was to meet this person after several days in Sydney. He did not know when or where he was going to meet this person but was supposed to contact his boss who would then tell him everything;
d)he planned to stay in Australia for a month and a bit;
e)while his boss was to pay for all expenses, he was not given any money for the trip as he was still being paid his salary of 2,000RMB per month. He later stated that his boss would reimburse him and he could, at any time, call his boss and have money sent;
f)prior to 20 July 1999 he practised the Falun Gong exercises in China every day and also learnt the law of Falun Gong;
g)he did not practise Falun Gong at home after the July 1999 crackdown because someone would have “dobbed him in” and he would have gone to gaol;
h)his previous medical conditions started to come back after he ceased practising. Saying the words “Falun Dafa” or “Falun Gong” helped a little bit;
i)the authorities will put him in gaol if he returns to China because he has participated in Falun Gong activities in Australia. Further, if he were to return to China, he would continue to practise Falun Gong and would have to tell people the truth;
j)he stopped practising in July 1999 because he had only just started and was scared. At that time he was “only giving it a try”; he was not really a practitioner, but just wanted to learn and to purify and improve. Through his study in Australia, however, he has learnt the truth, the law of Falun Gong and the exercises;
k)he continues to practise Falun Gong by himself at home and attends a study group on Fridays in Parramatta. He does not practise with others as he is busy working and needs to adjust to that; and
l)in 2005 he went to a demonstration with John Deller and in 2006 he attended a demonstration outside the Chinese Consulate-General in Sydney. On Sundays, if he has time, he goes to the Chinese Consulate-General in Sydney and sends out his hate.
Third party evidence
On 11 July 2007 the Tribunal wrote to John Deller as follows:
Please find attached a facsimile dated 13 March 2005 which the applicant sent to the Tribunal as evidence of his Falun Gong practice. It claims you know of the applicant practising Falun Gong with practitioners in Sydney.
Please advise of the following:
▪ whether the attached document is authentic;
▪ whether you know the applicant;
▪ whether you know if the applicant continues to practise Falun Gong;
▪ and whether you believe that the applicant is a genuine Falun Gong practitioner.
On 25 July 2007 Mr Deller advised the Tribunal that:
a)the facsimile was genuine;
b)he was waiting for further feedback from other practitioners;
c)the facsimile was based on evidence he received from practice site co-ordinators; and
d)it was possible that the applicant came to the Fa study group at Parramatta on Fridays. He did not know the applicant by name but might know him by face.
On 14 August 2007 Mr Deller advised that:
Following further feedback from local practitioners, I am unable to provide any additional evidence on Mr [applicant] at the moment.
At the hearing on 22 August 2007 the Tribunal advised the applicant of Mr Deller’s reply. The applicant claimed that “sometimes he went there and sometimes he didn’t” and that he “was not very famous”. The applicant’s migration agent indicated that Mr Deller had contacted her and asked to have a meeting with the applicant. It was agreed between the migration agent and the Tribunal that the applicant would see
Mr Deller within two weeks. The Tribunal indicated to the applicant that positive evidence from Mr Deller would be persuasive.
The Tribunal did not receive a reply from the applicant within the stipulated timeframe and on 6 September 2007 the Tribunal wrote to Mr Deller seeking his advice on the outcome of the meeting. The Tribunal also wrote to the applicant pursuant to s.424A.
On 11 September 2007 Mr Deller advised the Tribunal that he had not had a meeting with the applicant and did not know of a request to meet him. He advised that the applicant might have had contact with Bob Wu, a long term Falun Gong practitioner in Sydney.
The applicant responded to the Tribunal’s s.424A notice on
20 September 2007and submitted, amongst other things, that he could not get a letter from Mr Deller because he (the applicant) was busy with work. In addition, he was told by other practitioners that Mr Deller was no longer the president of the Falun Dafa Association and therefore could not issue him with a statement. The applicant also attached a statement of support from Bob Wu who indicated that he had met the applicant several times during book reading sessions at Parramatta on Fridays. Mr Wu stated that the applicant had participated in some Falun Gong demonstrations and parades in Sydney and he was “greatly concerned if he were forced to return to China”.
On 5 October 2007 the Tribunal contacted the applicant’s migration agent who advised that the president was no longer Mr Deller but
Mr Wu and that the applicant went to see him after the hearing.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant’s evidence regarding why he came to Australia, how he was going to pay for his time here, where he was going and who he was going to meet lacked detail and was vague and implausible. In this respect the Tribunal noted that:
i)the applicant claimed that he was sent to Australia by his company for the purposes of a business study tour but was unable to provide any evidence of who he was going to meet, his timetable of visits or exactly where he was going or how he was getting there;
ii)he initially stated that he was going to Canberra to look at office furniture, then said Sydney, and then clarified that he was going to Canberra and that someone was going to meet him;
iii)he stated that he was going to pay for his expenses in Australia from his salary of approximately $A350 per month and later stated that his boss was going to reimburse him and he could have money sent;
iv)a person travelling to Australia on a business trip paid for by his company would be expected to have a detailed itinerary, know who he was going to meet and where and which companies he was looking at. The Tribunal did not accept that the applicant was to contact his boss once he arrived in Australia; and
v)the applicant’s answers were vague, vacillating and lacking in detail, leading the Tribunal to conclude that he was not telling the truth;
b)the Tribunal did not accept that the applicant was a genuine Falun Gong practitioner for the following reasons:
i)his overall knowledge about generally known facts relating to Falun Gong was not commensurate with his claim to have been practising Falun Gong for over two years in Australia and for a number of months in China;
ii)the Tribunal did not accept that the applicant was unable to provide such information at the hearing because he was nervous and tense and all of a sudden his mind was empty. The Tribunal expected a genuine Falun Gong practitioner who practises often to be able to provide such information at hearing;
iii)the applicant was unable to name the fourth and fifth Falun Gong exercises and incorrectly described the Falun and its significance. The Tribunal expected a genuine Falun Gong practitioner to be able to name the five exercises and provide detail on the Falun and the way it spins, given their centrality to Falun Gong practice and teachings;
iv)the applicant was unable to provide detailed information about the April 1999 Falun Gong demonstrations in Tianjin which led to the protest at the Zhongnanhai and the banning of Falun Gong by the Chinese authorities in 1999. Given that the applicant was living and practising Falun Gong in Tianjin at the time, claimed to have been a practitioner for over two years and to having attended demonstrations in Australia against the Chinese government, the Tribunal expected that he would have been able to provide more detail than he did. The Tribunal did not accept the applicant’s explanation that the ordinary person would not know;
v)the applicant’s own evidence indicated that he was not a committed Falun Gong practitioner in China and did not have the strength of his claimed convictions while in China. The Tribunal noted that at the hearing on 22 August 2007 the applicant:
· initially stated that he practised Falun Gong in his heart. When questioned by the Tribunal about his level of commitment, he stated that at the time he was only giving it a try and has since learnt that Falun Gong is really good;
· conceded that he was not really a practitioner before; he just wanted to learn and to purify and improve; and
· stated that he stopped practising in 1999 because he feared going to gaol but through his study in Australia he has learnt the truth, the law of Falun Gong and the exercises;
c)on the basis of his lack of detailed evidence as to his business study trip in Australia and lack of detailed knowledge of Falun Gong, the Tribunal did not accept that the applicant was a truthful witness;
d)the Tribunal noted the corroborative evidence of the three witnesses, the statutory declaration from a Falun Gong practitioner and the letter from John Deller. It accepted that the applicant may have attended a Falun Gong group in Australia and also that he engaged in the study of Falun Gong and attended some activities but found that, while given in good faith, such statements did not in themselves establish that the applicant had a commitment to Falun Gong or that he was a genuine practitioner. Similarly, the photographs showed only that the applicant had attended Falun Gong activities and did not establish that he was a genuine practitioner. As such, and in light of its concerns that the applicant was not a witness of truth, the Tribunal gave little weight to this evidence; and
e)the Tribunal noted that a possible claim of persecution could be made involving Chinese spies in Australia noting the applicant’s attendance at various Falun Gong protests, demonstrations and celebrations. Not being satisfied that the applicant had engaged in such activities other than for the purpose of strengthening his claim for refugee status, the Tribunal disregarded this conduct in accordance with s.91R(3) of the Migration Act 1958 (“Act”).
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. A breach of the rules of natural justice occurred in connection with the making of the Decision.
(2)Procedures that were required by law to be observed in connection with the making of the Decision were not observed.
Failure to comply with the rules of natural justice
The two allegations pleaded in the application shared common particulars, namely that:
a)the Tribunal failed to make a decision based on fair reasons because the Tribunal’s understanding of Falun Gong was limited;
b)the Tribunal only considered evidence or information which was unfavourable to the applicant and ignored information which was favourable to him; and
c)the Tribunal’s conclusion was unreasonable and unfair.
These matters are, in essence, ones of fact or go to the merits of the application. Such findings cannot be the subject of review by this Court in judicial review proceedings. On that basis, the allegations made in the application, as particularised, do not disclose jurisdictional error on the part of the Tribunal.
Additionally, to the extent that the applicant complains that the Tribunal ignored evidence from Falun Gong leaders Mr John Deller and Mr Bob Wu, it should be noted that the Tribunal disregarded the applicant’s Falun Gong activities in Australia pursuant to s.91R(3) of the Act because it was not satisfied that such conduct had been undertaken other than for the purpose of strengthening the applicant’s protection visa application. For this reason as well, the Tribunal’s failure to have regard to the information provided by Mr Deller which, in any case, was equivocal, and Mr Wu, does not disclose jurisdictional error on the part of the Tribunal.
Information obtained under s.424
In his written submissions, the Minister rightly and fairly drew the Court’s attention to a matter which had not been identified by the applicant. This was the question of whether the Tribunal’s enquiries of Mr Deller breached ss.424 and 424B of the Act causing its decision to be affected by jurisdictional error. Section 424 provides:
424 Tribunal may seek additional information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3)The invitation must be given to the person:
(a) except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b) if the person is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
The relevant correspondence passing between the Tribunal and Mr Deller is set out at pp.14 and 15 of the Tribunal’s decision (CB 214-215) and was annexed to the affidavit of Pamela Anne Summers sworn 11 September 2008. The following important facts emerge from that correspondence:
a)it was the Tribunal which made contact with Mr Deller by an email dated 11 July 2007. Mr Deller had not previously made contact with the Tribunal in connection with the applicant’s review;
b)the email to Mr Deller was sent to an email address which the Tribunal had noted in its records at some earlier time;
c)all of the communications between the Tribunal and Mr Deller were by email;
d)none of the Tribunal’s emails to Mr Deller specified in so many words the way in which he was to respond to the Tribunal’s queries or the period within which he was to do so; and
e)Mr Deller appears to have responded by email to the Tribunal’s enquiries to the limited extent he was able and with reasonable promptness.
The information provided by Mr Deller while taken into account was not relied upon by the Tribunal in arriving at its decision.
Section 424B relevantly provides:
424B Requirements for written invitation etc.
(1) If a person is:
(a)invited under section 424 to give additional information; or
(b)invited under section 424A to comment on or respond to information;
the invitation is to specify the way in which the additional information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2)If the invitation is to give additional information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
None of the Tribunal’s emails ostensibly met the requirements of ss.424B(1) or (2), even though it can be assumed that Mr Deller was being invited to respond by email. In not dissimilar circumstances, Buchanan J held in SZLWQ v Minister for Immigration & Citizenship [2008] FCA 1406 that no jurisdictional error was disclosed. As his Honour said:
Section 424B(1) directs the RRT to specify the way in which the additional information is to be given. Clearly it was not to be at an interview. Equally clearly, Mr Kalin understood that he was being invited to respond in kind, by facsimile. The course of dealings between him and the senior researcher since the first enquiry by facsimile on 12 April 2002 had established that as their mutual, and agreed, method of communication. In my view the nomination of a facsimile number as a facility for the response was also a sufficient specification of a method of response. Accordingly, there was no breach of s.424B(1).
Section 424B(2) on its face directs that ‘information or comments are to be given within a period specified in the invitation’. It does not, in terms, impose a direct obligation on the RRT about the terms of the invitation (cf. s.424B(1) – ‘the invitation is to specify ...’). The consequence of any failure to specify a period is that the facility in s.424C of proceeding to a decision in the absence of the information might not be available but I do not see s.424B(2) as establishing the kind of obligation on the RRT which could lead to either statutory breach or jurisdictional error. A circumstance of this kind (failure to specify a period and consequent inability to rely on s.424C) does not fall within any of the reasoning in SZKTI, SZKCQ or SZIZO. As it happens the information was given. It was brought to the attention of the appellant. She had an opportunity to deal with it. It cannot be said that the information was not given before the time for it had passed (s.424C(1)(b)). In my view no ‘breach’ of s.424B(2) occurred and, in any event, any failure to comply with its strict terms did not, in the circumstances of this case at least, amount to jurisdictional error on the part of the RRT. The Minister’s latest written submissions drew attention to judgments of this Court to similar effect (SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449 and M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333 at [34]-[37]). (at [51]-[52])
His Honour’s decision in SZLWQ is binding on me. As a consequence and in the circumstances of this case where the Tribunal supplied to
Mr Deller an email address to which to reply, I find that the Tribunal’s emails to Mr Deller sufficiently specified the way in which he might give the requested information. I further find that the failure of the Tribunal’s emails to specify a period within which Mr Deller was to reply does not amount to jurisdictional error.
However, that is not the end of the matter. Section 424(3), requires that any request for information such as that made by the Tribunal of
Mr Deller be made by one of the methods set out in s.441A. That section relevantly provides:
441AMethods by which Tribunal gives documents to a person other than the Secretary
(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.
…
(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.
It is to be noted that, at least at the outset of the communications between the Tribunal and Mr Deller, the latter had not provided an email address to the Tribunal in connection with the review.
In circumstances where the intended recipient of the Tribunal’s request for information has never “in connection with the review” given it his or her contact details, the strict wording of s.441A(5) would appear to preclude the effectiveness of any written inquiry prior to the recipient confirming his or her address. However, a construction of the subsection requiring the Tribunal to first seek from its third party correspondent an address to which correspondence might be sent, in circumstances where it already has this information, appears impractical and improbable. One only has to consider the Tribunal’s regular requests for information from the Department of Foreign Affairs and Trade to recognise this.
It is apparent that s.441A was not drafted with such a circumstance in mind and appears to be concerned with applicants or their representatives rather than with third parties who are strangers to the review. The purpose of the section can be understood to seek, amongst other things, to ensure that communications reach their intended recipients or are at least taken to have done so. As far as applicants are concerned this is a matter of crucial significance. However, this is hardly so for third parties who are the mere recipients of requests for information. A precise and literal application of ss.424(3)(a) and 441A produces a result which is both improbable and inconvenient to the extent that s.441A requires the Tribunal’s initial correspondence to the third party to be sent to an address which that third party has provided in connection with the review but which, in reality, would not have been so provided at that stage. Such a situation indicates that, rather than preferring the literal meaning of s.441A, to the extent that it requires initial correspondence to a third party to be sent to an address which that party has not yet identified in connection with the review, a meaning which is reasonably open and more clearly conforms to the legislative intent should be preferred: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
In cases where it is the Tribunal which is initiating contact with a third party for the purposes of eliciting information under s.424, the reference in s.424(3)(a) to “one of the methods specified in section 441A” must be understood to be a reference to personal service (s.441A(2)); hand delivery to a person at the recipient’s residential or business address (s.441A(3)); despatch by pre-paid post or other pre-paid means (s.441A(4)); or transmission by fax, email or other electronic means (s.441A(5)) to or at an address known to the Tribunal rather than to or at an address supplied to the Tribunal by the third party for the purposes of the review. At the outset of communications, if the Tribunal is aware of a third party’s address through its own records or researches, rather than because that information has been supplied by the third party in connection with the review, the Tribunal’s initial inquiries should not be taken to fall outside the scope of s.441A. Certainly, subsequent communications would have to be sent to any address identified by the recipient as being the appropriate address to which communications ought be sent but, until that point, the Tribunal should be entitled to use whatever address it has as being the most likely one at which it can make contact with the intended recipient.
Relevantly for this case, the Tribunal sent an email to Mr Deller at an address contained in its records. Mr Deller subsequently replied using that email address. Communication with him at that address then followed. The first communication from the Tribunal should be taken to have satisfied the requirements of s.441A(5) in a purposive sense and all subsequent communications can be seen to have met the subsection’s terms strictly.
For these reasons, the Tribunal’s communications with Mr Deller met the requirements of s.441A and, therefore, also the requirements of s.424(3).
For these reasons, no jurisdictional error on account of a breach of ss.424, 441A or 424B has been disclosed.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 14 October 2008
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