SZIVV v Minister for Immigration
[2006] FMCA 1120
•31 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIVV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1120 |
| MIGRATION – Review of Refugee Review Tribunal decision – competence of show cause application – issue of fact of when applicant notified of the RRT decision – whether receipt by an agent of a document is receipt by the principal considered. |
| Evidence Act 1995 (Cth), ss.160, 163 Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 Migration Litigation Reform Act 2005 (Cth) |
| SZBCB v Minister for Immigration [2006] FCA 1009 |
| Applicant: | SZIVV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1417 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 7 August 2006 |
| Date last submissions received: | 21 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr A Crockett Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application filed on 16 May 2006 is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements in the sum of $2,500, in accordance with rule 44.15(1) and paragraph 1(b) of Part 2 to Schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1417 of 2006
| SZIVV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction and background
I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The application was filed on 16 May 2006 and relates to a decision of the RRT made on 20 January 1999. The show cause application is silent in answer to the question of when the applicant was notified of the RRT decision. Also silent on that issue is the affidavit by the applicant filed on 16 May 2006 supporting his application.
The first respondent’s response, filed on 29 May 2006 asserts that the application is out of time. The first respondent relies upon Item 42 of Schedule 1 to the Migration Litigation Reform Act 2005 (Cth) (“Migration Litigation Reform Act”) and s.477 of the Migration Act 1958 (Cth) (“the Migration Act”) as amended by the Migration Litigation Reform Act as it applies on and from 1 December 2005.
This matter came before me on 13 June 2006 for the first time. I accepted that there was an issue as to the competency of the show cause application. I formed the view that if the applicant was notified of the RRT decision prior to 1 December 2005, the show cause application would be incompetent[1]. I made orders for the filing of further material and directed that the matter be listed for a preliminary hearing as to jurisdiction (and, if necessary, a show cause hearing) pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on 7 August 2006.
[1] SZBCB v Minister for Immigration [2006] FCA 1009
The evidence
I received as evidence relating to the competence of the show cause application the affidavit of Andrew John Crockett made on 6 June 2006 and the applicant’s affidavit made on 5 July 2006. I also received four exhibits relevant to the question of when the applicant was notified of the RRT decision.
The applicant was cross-examined upon his affidavit. He:
·acknowledged that the signature on the RRT review application form at page 7 of the annexures to Mr Crockett’s affidavit was his signature;
·acknowledged that the residential and postal addresses appearing on the review application form at page 5 of the annexures to Mr Crockett’s affidavit were correct at the time that form was completed and further agreed that the information given in answer to question 11 on the form[2] were accurate;
[2] also at page 5 of the annexures to Mr Crockett’s affidavit
·said that the form was filled in by his agent at the time but that the contents were read back to him by the agent and he was able to satisfy himself that the content of the form was correct;
·said that the post office box number 348 at Lakemba was not his but was that of his agent and that he did not have a key to it;
·was unable to say how regularly the post office box was cleared by the agent;
·agreed that he signed a response to hearing invitation form appearing at page 9 to the annexures to Mr Crockett’s affidavit;
·agreed that at that time he had changed his residential address to Liverpool although the postal address at Lakemba remained the same;
·denied receipt of the letter dated 20 January 1999 from the RRT to him and to his agent enclosing a copy of the RRT decision and reasons[3];
[3] see pages 11 and 12 to the annexures to Mr Crockett’s affidavit
·said that he did not receive a copy of the RRT decision until May 2006 after a “friend” advised him that he should seek a copy;
·said that he did not contact the RRT between January 1999 and May 2006 because he assumed that a copy of the RRT decision would be sent to him and he had advised his agent of a change to his residential address approximately one week after he attended a hearing before the RRT on 8 January 1999[4];
·agreed that he gave no instruction either to his agent or to the RRT to cease using the post office box at Lakemba for correspondence;
·asserted that he was told both by a RRT officer and by his agent that correspondence would be sent to him at his residential address, but could not explain how this could be the case in the face of his direction for correspondence to be sent to the post office box controlled by his agent;
·agreed that he completed the notification of change of address form forming exhibit R1 which notified the same address as the applicant had previously notified the RRT of in his acceptance of the hearing invitation and which said nothing in relation to his postal address;
·stated and confirmed that he has had no contact with his agent since about 15 January 1999 when he spoke to her at her office and advised her of his latest change of residential address;
·asserted that he received correspondence sent by the RRT prior to the RRT hearing but also asserted that he received no correspondence sent to the post office box at Lakemba, because that was received by his agent[5];
·denied a suggestion from Mr Crockett that his agent had given him a copy of the RRT decision;
·confirmed that on 27 April 2006 he made a freedom of information request for a copy of the RRT decision[6];
·produced a receipt for the payment of $200 to a firm called Australia Qian Jin Enterprise Pty Ltd dated 27 April 2006[7] apparently for services relating to the FOI request; and
·said that he did not request a copy of the decision from his migration agent because he would have had to “pay money”.
[4] The applicant initially said that the new address he advised his agent of was his present one at Bexley but later said that he was not sure.
[5] Exhibit R2 and Mr Crockett’s affidavit establish that all known correspondence from the RRT was sent to the post office box at Lakemba and also to the applicant’s agent.
[6] Exhibit R3
[7] exhibit A1
Submissions
The oral submissions by the applicant and Mr Crockett were directed to the issue of whether the applicant’s evidence that he did not receive a copy of the RRT decision until May 2006 should be believed. I invited written submissions by 21 August 2006 from both of them on the question of whether, even if the applicant’s evidence is accepted, for the purposes of s.477 of the Migration Act and Item 42 of Schedule 1 to the Migration Litigation Reform Act, the applicant was in fact notified of the RRT decision when his agent was notified by the letter dated 20 January 1999[8].
[8] which can be assumed to have been nine working days after the date on the letter, see ss.160 and 163 of the Evidence Act 1995 (Cth).
Mr Crockett made the following submissions which were filed on 21 August 2006:
Generally, the first respondent submits that the Court should find that the applicant was not a credible witness, and accordingly would not place any weight on his evidence (in particular, his claim that he was only notified of the Tribunal decision in May 2006). Furthermore, the first respondent submits that the only plausible inference to be drawn from the other evidence before the Court is that the applicant was actually notified of the Tribunal decision in about February 1999.
During the course of his oral evidence, the applicant gave inconsistent evidence on a number of occasions (e.g. about when he last spoke with his migration agent; his residential address in 1999; etc). Also, he demonstrated a willingness to change his evidence and give answers which he appeared to think would best assist his case at that time (e.g. about whether he had ever received correspondence from the Tribunal directly - evidence the applicant withdrew after he was shown Exhibit R2).
Further, the first respondent submits that it is simply not plausible that a person in the applicant’s position (i.e. an unsuccessful applicant for a protection visa with an application for review before the Tribunal) would have waited over 7 years before approaching the Tribunal for a copy of the decision, particularly given that he had attended a hearing before the Tribunal. It is also not plausible that apart from a supposed final meeting or telephone call (the applicant’s evidence on the nature of the contact was vague and contradictory) with his migration agent about a week after the Tribunal hearing, the applicant would have not have attempted to contact his migration agent about this.
The request to the Tribunal by the applicant under the Freedom of Information Act for a copy of “The RRT Decision for my application” in April 2006 and subsequent provision of a copy of the Tribunal decision[9] is evidence for no more than simply that, and does not prove that the applicant did not at some prior point in time receive actual notification of the Tribunal decision.
[9] Exhibit R3.
Section 477 of the Act provides that:
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2)The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a)an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b)the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3)Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4)The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.[10]
The first respondent submits that the Court would find on the balance of probabilities that the letter from the Tribunal to the applicant dated 20 January 1999 was received by the applicant at his nominated address for service (i.e. the PO Box in Lakemba[11]) on about Tuesday, 2 February 1999, and he was actually notified shortly thereafter, when he next accessed the post office box: see s.163(1) and s.160(1) of the Evidence Act 1995 (Cth) and s.29 of the Acts Interpretation Act 1901 (Cth).
As the applicant received actual notification of the Tribunal decision prior to 1 December 2005, for the purposes of s.477 of the Act he is taken to have been actually notified of the decision on 1 December 2005: Pt 2, item 42 of Sch.1 to the Migration Litigation Reform Act 2005 (Cth). Accordingly, his application to this Court was not made within 28 days of 1 December 2005 and the application is out of time: s.477(1) of the Act. The Court has no power to extend time for the commencement of the proceedings beyond 23 February 2006 and until 16 May 2006, when the application was filed: c.f. s.477(2), and see s.477(3) of the Act. The application is therefore incompetent.
In the event the Court is minded to accept the applicant’s evidence to the extent that the PO Box in Lakemba was owned by his migration agent and the applicant did not have access to it, then the first respondent relies on the following alternative submissions.
The first respondent accepts that, for the purposes of s.477 of the Act, the applicant himself needs to have received actual notification of the Tribunal decision (whether from the Tribunal or elsewhere), and it is not sufficient for only the applicant’s nominated agent to have received that notification.
However, the first respondent submits that the Court would find on the balance of probabilities that the letter from the Tribunal to the applicant dated 20 January 1999 was received by the applicant’s migration agent at both the nominated address for service and the migration agent’s address (i.e. 320/413-415 Sussex Street Sydney NSW 2000[12]) on about Tuesday, 2 February 1999.
Further, the first respondent submits that the Court would find on the balance of probabilities that the migration agent forwarded a copy of the Tribunal decision to the applicant and / or notified the applicant of Tribunal decision in about early February 1999. This would be in accordance with her professional obligations to her client, and is consistent with the evidence that she had done so with other correspondence from the Tribunal in the past (i.e. the response to hearing form which was signed by the applicant on 18 October 1998[13]). Even on the applicant’s own evidence, as at about a week after the Tribunal hearing his migration agent had his then current residential address to forward any such correspondence.
If the Court accepts that submission, then the first respondent relies on the submissions in paragraph 15 above, and the Court should find that the application is incompetent.
[10] Note: At the time the Tribunal posted its decision to the applicant's nominated addresses, deemed service of documents was governed by Reg.5.03 of the Migration Regulations 1994. Regulation 5.03 relevantly provided that "a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent ... 7 days after the date of the document". However, in Minister for Immigration v Singh (2000) 98 FCR 77 at 91 [51] per O’Connor and Mansfield JJ, Reg.5.03 was held to be invalid to the extent it sought to impose such time constraints.
[11] Affidavit of Andrew John Crockett sworn 6 June 2006 and filed 7 June 2006, Annexure A p.5.2 and Annexure B p.9.2.
[12] Affidavit of Andrew John Crockett sworn 6 June 2006 and filed 7 June 2006, Annexure A p.5.7 and Annexure C p.12.4.
[13] Affidavit of Andrew John Crockett sworn 6 June 2006 and filed 7 June 2006, Annexure B p.9.9.
The applicant did not make additional submissions.
Reasoning
I do not rule out the possibility that, under the general law of agency, as opposed to anything in the Migration Act, a migration applicant may in law be taken to have received correspondence that is in fact received by his or her authorised agent acting within the scope of their agency. That was the issue that was exercising my mind when I invited written submissions from the parties. I note, from the Minister’s written submissions filed on 21 August 2006, that the Minister does not wish to put such a submission. I will not say anymore about it for the purposes of this proceeding.
The applicant’s position is that he should be believed on his evidence and that the Court should find that he did not receive actual notification of the RRT decision until May 2006, following his Freedom of Information request. The Minister’s position is that the applicant should not be believed on his evidence and that I should find that the applicant was in fact notified of the RRT decision on or about 2 February 1999. I prefer the Minister’s submissions on this critical issue.
First, the applicant was an unimpressive witness under cross‑examination. His evidence was internally inconsistent at times on matters of significant detail, including his dealings with his migration agent in 1999, his address at the time and his receipt or non receipt of correspondence from the RRT prior to its decision.
Secondly, it is highly implausible that a person would wait in excess of six years before making any serious enquiry about the outcome of a review application to the RRT. This was potentially a life and death matter for the applicant and it stretches credulity to breaking point to claim, as he does, that he waited patiently for receipt of a copy of the RRT decision between January 1999 and April 2006, at which time he sought a copy on the advice of a friend. I am prepared to accept that someone advised the applicant to make his Freedom of Information request in April 2006 but I think it likely that the purpose of that request was to seek to demonstrate that the applicant had not previously received a copy of the decision. It is also implausible that the applicant would not seek a copy of the RRT decision from his migration agent on the basis of the potential expense involved. The applicant was happy to pay for a Freedom of Information request to be made on his behalf on 27 April 2006.
Thirdly, I draw an inference that evidence from the applicant’s migration agent would not have assisted him. The failure by the applicant to seek and present any evidence from the agent is troubling.
Next, apart from the applicant’s assertions, there is no evidence of non receipt of correspondence sent to him by the RRT. The applicant’s own evidence on that issue was contradictory. On the one hand, he asserted that he received no correspondence sent to the post office box in Lakemba. On the other hand, he asserted that he did receive correspondence sent by the RRT prior to the making of its decision. All of the correspondence sent to the applicant by the RRT was directed to him at the post office box in Lakemba and also to his migration agent at the agent’s business address. The applicant must have received the hearing invitation sent to him by the RRT on 12 October 1998 because he responded to it. That letter was directed to the applicant at the post office box in Lakemba and also to his migration agent in Sussex Street. The applicant must have received the letter directly from the post office box or via his migration agent.
It is very difficult to believe that any competent and professional migration agent would fail to draw to her client’s attention significant correspondence from the RRT. The migration agent appears to have met her professional obligation in relation to the hearing invitation. It is very hard to believe that she would not likewise have met her professional obligation in relation to the decision of the RRT. The applicant’s proposition that he did not have access to the post office box that he had nominated for the receipt of correspondence directed to him (rather than his migration agent) makes no sense. The applicant claimed that that was his migration agent’s idea but it would be irresponsible for an agent to suggest an address at which her client could not personally receive correspondence.
I do not believe and I reject the applicant’s claim that he had no access to the post office box in Lakemba. Even if I were prepared to accept that that assertion were true (and I am not so prepared) it is probable that the applicant’s migration agent drew to his attention the decision of the RRT shortly after the time she would have received it in the ordinary course of post. I find, on the balance of probabilities, that the applicant was in fact notified of the RRT decision either directly, by collecting the notification correspondence from the post office box at Lakemba, or indirectly, on receiving the notification from his migration agent.
The notification letter from the RRT is dated 20 January 1999. There is no evidence to rebut the presumption in s.163 of the Evidence Act 1995 (Cth) (“the Evidence Act”) that the letter was sent by pre-paid post to the addresses shown on it on the fifth business day after that date. Neither is there any reliable evidence to rebut the presumption in s.160 of the Evidence Act that the letter was received by the applicant and his migration agent at the addresses specified on it on the fourth working day after it was posted. I accept the Minister’s submission that, on the balance of probabilities, the applicant received notification of the RRT decision on or about 2 February 1999. He is therefore taken to have received actual notification of the decision on 1 December 2005 and, in consequence, the show cause application filed on 16 May 2006 is out of time and incompetent. The application should therefore be dismissed as incompetent.
Costs should follow the event in accordance with the Federal Magistrates Court scale in relation to migration proceedings.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 September 2006
CORRECTION
Paragraph 17, line 10 – delete “2000”, replace with “1999”
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