SZJDS v Minister for Immigration

[2011] FMCA 681

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJDS v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 681

MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal failed to comply with s.360 or s.360A of the Migration Act 1958 (Cth) – whether applicant gave the Tribunal written notice of the name and address of an authorised recipient.

Acts Interpretation Act 1901 (Cth), s.25C
Migration Act 1958 (Cth), ss.91X, 116, 360, 360A, 362B, 347, 348, 379A, 379C, 379G, 441G, 494D, 495
Migration Regulations 1994 (Cth), regs.1.18, 4.21

Jalagam v Minister for Immigration & Citizenship [2009] FCA 197
Jalagam v Minister for Immigration and Citizenship  and Another (2008) 221 FLR 202; [2008] FMCA 1417
Jalagam v Minister for Immigration and Citizenship & Anor [2009] HCASL 190
Le v Minister for Immigration and Citizenship (2007) 157 FCR 321; [2007] FCAFC 20
Lo v Minister for Immigration and Citizenship and Another (2007) 159 FCR 160; [2007] FCA 553
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Song & Anor v Minister for Immigration [2005] FMCA 685
SZIZO and Others v Minister for Immigration and Citizenship and Another (2008) 172 FCR 152; [2008] FCAFC 122
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184

Applicant: SZJDS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1430 of 2010

Judgment of: Barnes FM

Hearing dates: 9 February 2011, 16 March 2011, 23 March 2011 and 4 April 2011

Date of Last Submission: 28 April 2011

Delivered at: Sydney

Delivered on: 31 August 2011

REPRESENTATION

Counsel for the Applicant: Ms A Rao

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1430 of 2010

SZJDS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal made on 15 June 2010 affirming a decision of a delegate of the first respondent to cancel the applicant’s Subclass 426 (Domestic Worker (Temporary) – Diplomatic or Consular) visa. As the applicant has in the past been an applicant for a protection visa, he is referred to in these proceedings under the pseudonym SZJDS. In addition, other identifying material (such as the nationality and identity of his employer in Australia) is not recorded, having regard to the apparent intention behind s.91X of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Bangladesh.  Between 1998 and 2005 he was a domestic and personal assistant in another country (X).  In May 2004 the applicant was granted a Subclass 426 visa on the basis that he was sponsored by an employer who was associated with the X Embassy in Australia.  He came to Australia in February 2005 as the holder of a Subclass 426 visa.  He claimed that he started working for his sponsor performing domestic work and that he also attended the X Embassy to work as an office boy. 

3. The applicant claimed that his sponsor returned to X in late February 2005.  At the instructions of his sponsor, he continued to perform domestic work for another person who was staying at the sponsor’s home.  While he had stopped working for the X Embassy when his sponsor left Australia, sometime in March 2005 he was instructed by X Embassy staff to work at the Embassy and was told that he would be paid.  He claimed that he worked at the Embassy from about March 2005 to September 2005 and that he also performed domestic work at the home of the ambassador for X. 

4. The applicant claimed that in September 2005 the X ambassador told him that he would be put on a flight back to X.  He claimed that under threat of removal from Australia he fled the X Embassy and travelled interstate. 

5. Included in the court book is a copy of an email dated 23 September 2005 from the office of the X ambassador to the Department of Immigration, apparently in response to earlier correspondence, advising that the applicant was the holder of a subclass 426 visa; that his sponsor had asked him to return to X; that a flight had been booked and that the applicant had been informed, but that they were unable to locate him. 

6. On 4 October 2005 the applicant’s migration agent provided the applicant’s contact details to the Department. On 7 October 2005 the Department wrote to the applicant advising that on 30 September 2005 the Department had received advice that his employer had withdrawn his sponsorship and hence that his visa may be cancelled under s.116(1)(a) of the Act as the circumstances that permitted the grant of his visa no longer existed. The letter also advised that a number of matters may be taken into account in determining whether to cancel the visa and sought his response.

7. The applicant responded through his migration agent by letter dated 24 October 2005, contending that his visa should not be cancelled as the breach was completely beyond his control, he had never been paid wages and was suffering financial hardship.

8. On 11 November 2005 the delegate wrote to the applicant advising that his visa had been cancelled on 8 November 2005 on the basis that the circumstances which permitted the grant of the visa no longer existed as his employer had withdrawn his sponsorship and the reasons for not cancelling the visa were not considered sufficient to outweigh the existence of the grounds for cancellation.  The decision record stated that on 30 September 2005 the Department had received advice from the Department of Foreign Affairs and Trade that the applicant’s employer had withdrawn his sponsorship of employment. 

9. It appears that the applicant was not properly notified of the Department’s decision in 2005.  He was renotified by letter dated 6 November 2009.  On 20 November 2009 the applicant sought review by the Migration Review Tribunal.

10. On 16 February 2010 the Tribunal wrote to the applicant care of Ms L Payne, a Legal Aid Commission of New South Wales solicitor, on the basis that she was his authorised recipient.  The Tribunal invited the applicant to comment on whether the grounds for cancellation existed and to provide any evidence as to why he believed the visa should not be cancelled.

11. The applicant provided a response through Ms Payne, in the form of a detailed written statement signed by him and dated 30 October 2008 (sic) and a supporting submission from Legal Aid dated 15 March 2010.  Among other things, this submission was to the effect that after the applicant’s sponsor left Australia (less than one month after the applicant had arrived), the applicant was invited to work for the X ambassador, which he did until September 2005.  It was claimed that he had not been aware of his obligations to advise the Department of his change in employment and was of the view that working for another diplomat from the same diplomatic mission did not constitute changing employment.  The submission also drew attention to the applicant’s claim that he had not been paid for his work for his sponsor or for the ambassador apart from tips.  Subsequently he had commenced proceedings against X for breach of contract and non-payment of wages.  That matter was settled on the basis of an offer from X, albeit both X and the ambassador at the relevant time denied the applicant’s allegations. 

12. On 17 March 2010 the Tribunal wrote to the applicant by letter sent to Ms Payne inviting him to attend a Tribunal hearing on 12 May 2010.  The Tribunal asked the applicant to return a completed Response to Hearing Invitation Form enclosed with the letter by 24 March 2010.  

13. The applicant did not return the Response to Hearing Invitation Form and did not attend the hearing at the scheduled time and place on 12 May 2010.  

The Tribunal decision

1. On 15 June 2010 the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa pursuant to s.116 of the Act.

2. The Tribunal recorded that under s.116(1) of the Act the Minister (or Tribunal) may cancel a visa if satisfied that any circumstances which permitted the grant of the visa no longer existed. It referred to matters which Departmental policy suggested should be taken into account when considering whether to exercise the discretion to cancel a visa under s.116 of the Act.

3. The Tribunal set out the evidence before it, in particular the response to its letter of 16 February 2010.  Consistent with a case note in the Court Book the Tribunal recorded that it had invited the applicant to a hearing (on 12 May 2010), that on 10 May 2010 an officer was directed to contact the applicant’s representative and that she had advised that “she had not been able to contact the applicant and was not sure whether he would be attending the hearing”.  The Tribunal also recorded that on the day of the scheduled hearing it received a telephone call from the applicant’s representative at 10.00 am (the hearing having been scheduled for 10.30 am) to advise that it was “her belief that in all likelihood the applicant would not be attending the hearing”.  It appears that this may be a reference to a conversation recorded in a Tribunal case note dated 12 May 2010 at 10.16 am, notwithstanding that under the heading “comments” the date 11/5/10 appears. There is no record of any other such telephone conversation in the Court Book.  

4. The case note in question is as follows:

   Representative called to say that in all likelihood the applicant will not attend the scheduled hearing.  Rep stated that she would confirm this in writing.  I advised the Rep that I would keep the hearing until I receive the written confirmation otherwise the Tribunal would assume the applicant may still attend. 

5. Relevantly, also in evidence before the court is a redacted file note produced by the Legal Aid Commission of New South Wales in which Ms Payne recorded that at “8.30” on 10 May 2010 she “called [SZJDS] – says he did not get my letter of 1 April”. 

6. The Tribunal recorded that the applicant had failed to attend the scheduled hearing and that no reason had been provided for his non-attendance.  It found that it was “able to proceed to decision without doing anything further”.

7. In its findings and reasons the Tribunal found that the employer who sponsored the applicant for a visa had withdrawn his sponsorship on 30 September 2005 and that the circumstances that permitted the grant of the visa no longer existed from that point of time. It was satisfied that the ground for cancellation in s.116(1)(a) of the Act existed.

8. The Tribunal then considered whether the power to cancel the visa should be exercised.  It referred to Departmental policy and to the evidence that indicated that the applicant had been granted the visa on the basis that he would be working as a domestic worker for a consular official with X Embassy in Canberra.  It found that the evidence indicated that the applicant’s employer, the third secretary of the X Embassy, had withdrawn the employment sponsorship on 30 September 2005. 

9. The Tribunal addressed the applicant’s submission that the consular official who was his sponsor had left Australia less than one month after the applicant started working for him, that no notice was provided to the applicant and that the applicant subsequently worked for the X Ambassador until September 2005.  The Tribunal found, consistent with this claim, that the sponsorship of the applicant was withdrawn on 30 September 2005 and that thereafter the applicant was incapable of complying with the conditions attached to his visa, namely that he undertake work with regard to his sponsor and only undertake domestic duties and that if he wished to work for another person he had to seek the agreement of the Department of Foreign Affairs and Trade.

10. The Tribunal also considered the applicant’s claims that he had not been paid.  It referred to his acceptance of a settlement offer of his claim against country X and to the fact that he had provided a detailed statement about his employment between March and September 2005.  However the Tribunal continued:

    The applicant failed to attend the hearing scheduled for the 12 May 2010 and no further evidence was able to be collated with regard to the exercise of discretion in setting the cancellation aside.

11. The Tribunal noted that the evidence as to circumstances surrounding the applicant’s cessation of employment was based on the written statement he had provided to the Tribunal but that it had not been able to test these claims at a hearing. 

12. There was also evidence before the Tribunal that the applicant had sought a protection visa after he ceased working for his sponsor.  The Tribunal found that the evidence before it indicated that the applicant had exhausted merits and judicial review with regard to that application. 

13. The Tribunal also found that the applicant had “provided no further evidence to the Tribunal concerning his current personal or financial circumstances or his current state of health”.  

14. The Tribunal concluded that the evidence before it indicated that in breach of a condition attached to his visa the applicant had worked for another employer without seeking relevant permission, that there was “no material before the Tribunal with regard to the applicant’s current living or work arrangements” and that while his departure from Australia would cause him some hardship, he held only a temporary visa which did not provide him with permanent residence in Australia.  The applicant had not raised any additional matters with the Department or the Tribunal. 

15. The Tribunal concluded that considering the circumstances as a whole the visa should be cancelled.  It affirmed the decision of the delegate.  

This application

1. The applicant sought review by application filed in this court on 13 July 2010.  He now relies on an amended application filed on 15 March 2011.  The applicant was referred for pro bono assistance after it became apparent that there was an issue as to whether or not the Tribunal fallen into jurisdictional error by sending the hearing invitation letter to Ms Payne of Legal Aid Commission of New South Wales.  He was represented on a pro bono basis by Ms Rao of counsel.  The court records its gratitude to Ms Rao. 

2. The first ground in the amended application is that the Tribunal failed to comply with s.360A(1) of the Act. The particulars are:

   The Tribunal failed to give the applicant notice of the day on which and the time and place at which the applicant was invited to appear before the Tribunal.

3. The second ground is:

   The Tribunal failed to comply with s.360(1) of the Migration Act.

   Particulars

   a.   The Tribunal failed to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 

   b.   The invitation for the hearing was not addressed to the applicant and the applicant did not receive any such letter from the Tribunal.  Accordingly he did not respond and did not attend the hearing. 

4. Ground three is that the “Tribunal erred in finding that there was no material before it with regard to the applicant’s current living or work arrangements”. 

The relevant law

1. Grounds one and two raise for consideration the operation of a number of provisions in the Migration Act. Sections 360 and 360A are as follows:

   360 (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2) Subsection (1) does not apply if:

   (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

   (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c) subsection 359C(1) or (2) applies to the applicant.

   (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

   360A (1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

   (2) The notice must be given to the applicant:

   (a) except where paragraph (b) applies--by one of the methods specified in section 379A; or

   (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   (4) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

   (5) The notice must contain a statement of the effect of section 362B.

1. Section 379A sets out methods by which the Tribunal is to give documents to a person (see s.360A(2)). Subsection 379A(5) of the Act is as follows:

   Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, transmitting the document by:

   (a) fax; or

   (b) e-mail; or

   (c) other electronic means;

   to:

   (d) 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; or

   (e) if the recipient is a minor--the last fax number, e-mail address or other electronic address, as the case may be, for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.

2. If the Tribunal gives a document to a person in accordance with s.379A(5) of the Act, where it is transmitted by fax the person is taken to have received it “at the end of the day on which the document is transmitted” under s.379C(5) of the Act.

3. Section 379G of the Act is central to the first two grounds relied on by the applicant. It is as follows:

   (1)  If:

   (a) a person (the applicant) applies for review of an MRT-reviewable decision; and

   (b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;

   the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

   Note: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.

   (2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.

   (3) The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient.

   (4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.

   (5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.  

Application of s.379G of the Migration Act

1. In essence, the applicant contended that the notice of the hearing day, time and place required under s.360A of the Act was not “given to” him by the Tribunal when sent to Ms Payne, because she was not his authorised recipient within s.379G of the Act. He also claimed that the Tribunal did not otherwise give him notice of the hearing, whether in accordance with s.379A of the Act or otherwise, and that he had no actual notice of the Tribunal hearing. It was submitted for the applicant that either he did not appoint Ms Payne as his authorised recipient in connection with his review application or, if he did, that the appointment was in an application form that was rejected by the Tribunal so that any nomination therein was exhausted; or, in the alternative, the nomination was varied or withdrawn under s.379G(3) of the Act because it was inconsistent with the correct review application form completed by the applicant.

1. The hearing invitation letter dated 17 March 2010 was dispatched by the Tribunal by fax together with a letter of the same date addressed to Ms Payne, Legal Aid Commission of New South Wales.  Ms Payne was subpoenaed and gave evidence in these proceedings, which I accept.  She received this letter.  Under cover of a letter of 1 April 2010 she posted a copy of the hearing invitation and the response to hearing invitation form to the applicant at his then residential address.  The applicant’s evidence is that he did not receive this invitation. 

2. There is no evidence of the Tribunal giving a hearing invitation or notice of the hearing to the applicant other than by the letter of 17 March 2010 sent to Ms Payne. 

3. It is necessary to set out in some detail what occurred when the applicant sought review by the Tribunal.  Included in the Court Book is a copy of a letter from Ms Payne to the Tribunal dated 20 November 2009 which is said to attach an application for review of the decision to cancel his Subclass 426 visa made on 11 November 2005 (which was correctly notified to him on 6 November 2009) and an application for a fee waiver.  The letter also provided information about the applicant’s financial circumstances. 

4. Ms Payne’s evidence is that she completed a review application on an “M2” Form for the applicant.  She did not lodge it.  She understood that the applicant, with the assistance of a friend, had lodged the form with the Tribunal.  Form M2 is a printed form headed “Application for Review to the Migration Review Tribunal (for applicants in immigration detention)”. 

5. A Legal Aid file copy of the completed Form M2 subpoenaed from Legal Aid New South Wales (Legal Aid Form M2) contains all of pages 5 – 10 of that form.  The applicant indicated in Section B of that Form that he wished to nominate Ms Payne (whose contact details were provided) as his representative.  Ms Payne signed Section B and dated it 20/11/09. 

6. In Section C of that Form (headed “Where Do You Want Us To Send Correspondence About Your Application”) a tick was placed beside the box “Please send all correspondence in connection with this review to my representative whom I nominate as my authorised recipient”.  Beside this the printed words appear “If you tick this box all correspondence will be sent to your representative as given in section B and copies will be sent to you at the detention centre”.

7. It was stated on this Form that a copy of the delegate’s decision that the applicant wanted reviewed was attached.  The copy of Form M2 was signed by the applicant and dated 20 November 2009.  It can be inferred that a copy of this completed Form M2 was the application for review form referred to in Ms Payne’s letter to the Tribunal dated 20 November 2009. 

8. In addition, annexed to an affidavit sworn on 29 November 2010 by Katherine Whittemore, a solicitor employed by the solicitors for the respondents, is a partial copy of the same Form M2 signed by the applicant and dated 20 November 2009.  It bears a stamp indicating that it was received by the Migration Review Tribunal on 20 November 2009 (the MRT stamped Form M2).  It is apparent that this copy of Form M2 is from the Tribunal file for the applicant.  The words “By hand” are written on the form.  In addition, the MRT stamped Form M2 is marked with the handwritten words “Incorrect form”.  The receipt stamp has a handwritten line marked through it.  It is identical to the Legal Aid Form M2, except that it does not contain Section B (on printed page six) of that form.  Section B is the part of Form M2 that relates to “appointment of representative”. 

9. The reason Section B is missing from the MRT stamped Form M2 becomes apparent when regard is had to the copy Tribunal application form that appears in the Court Book.  It is on a printed form described on the first page as an “Application for Review to the Migration Review Tribunal (for applicants not in immigration detention)”.  This is the form known as a Form M1.  It was stamped received by the Tribunal on 20 November 2009.  It also bears a handwritten notation “by hand”.  It contains printed pages 5 – 11 of the Form M1, but also includes an additional completed page which is the same as page six (Section B) from the Legal Aid Form M2.  However the printed heading “Section B” has been changed by hand to read “Section E”.  On Form M1 “appointment of representative” is dealt with in Section E of the form.  In this Section the box “Yes” is marked in response to the question “Do you wish to nominate a representative to act on your behalf?”  This Section contains Ms Payne’s contact details and signature.  It is identical to the Section B contained in the Legal Aid Form M2.  It was signed by Ms Payne and dated 20 November 2009. 

10. Form M1 contained the applicant’s details (including a residential address and telephone number) as review applicant.  Section C (“Your capacity to apply for review”) was not completed.  There are two versions of Section E.  In the printed Section E which is part of Form M1, under the heading “Appointment Of Representative”, the box “Yes” was ticked in response to the question “Do you wish to nominate a representative to act on your behalf?”  Ms Payne’s name and address and contact details were provided.  She was described as a Legal Aid solicitor.  However this part of the form was not signed by Ms Payne or dated.  Ms Payne’s evidence is that she did not complete this part of the Form or any other Form M1 for the applicant.  As indicated, the next page in the Court Book is a completed page six from Form M2 headed “Appointment Of Representative” and altered to read Section E instead of Section B.  It can be inferred that it is the page that is “missing” from the MRT stamped Form M2 annexed to Ms Whittemore's affidavit, that this page was removed from the copy of Form M2 received by the Tribunal and that it was inserted in the M1 Form.  There is, however, no evidence before the court as to the circumstances in which this occurred. 

11. The next page in the Court Book is part of Form M1 and is headed Section F “Where do you want us to send correspondence about your application?”  At the top of Section F the following advice is provided:

    You may choose to have all correspondence sent to yourself or you may nominate a person known as an authorised recipient to receive correspondence on your behalf in connection with the review.

    If you nominate an authorised recipient, the Tribunal will send all correspondence to your authorised recipient.  The Tribunal only sends copies of correspondence to applicants who have nominated an authorised recipient where the applicant is in immigration detention.

    If you have a representative and you do not nominate your representative as your authorised recipient, your representative will not receive any correspondence from the Tribunal.

    If you do not nominate an authorised recipient, all correspondence on your case will be sent to you.

12. Form M1 then provides three alternatives as responses to the direction “Please send all correspondence in correction with this review: (tick one box only)”. 

13. These alternatives are as follows:

    ÿ to my representative whom I nominate as my authorised recipient

    (If you tick this box, all correspondence will be sent to your representative as given in Section E). 

    OR

    ÿ to another person whom I nominate as my authorised recipient

    (If you tick this box, all correspondence will be sent only to the person whose details you provide below). 

    This part of the form contains spaces for contact details for the nominated authorised recipient.  No details have been inserted. 

    OR

    ÿ  to me at my address

    (If you tick this box, all correspondence will be sent only to the address you provide below). 

14. This part of the Form contains a space for the applicant’s address for correspondence.  It has not been completed. 

15. On the Form M1 lodged with the Tribunal the second box in Section F was ticked, indicating that correspondence was to be sent to another person who was nominated as authorised recipient.  However no contact name or details were provided for any such other person in that part of Section F.  Nor did the applicant provide any details of his own address for correspondence in Section F. 

16. A copy of the delegate’s decision was said to be attached (Section G) and the applicant signed this Form.  It was also dated 20 November 2009. 

17. Ms Payne’s evidence was that she assisted the applicant in relation to his application before the Migration Review Tribunal and made submissions on his behalf.  She recognised the Form M2 annexed to Ms Whittemore’s affidavit which she said she completed on 20 November 2009.  She believed that the Form M2 annexed to Ms Whittemore’s affidavit was incomplete.  She did not lodge the application with the Tribunal, but she understood the applicant did so with the assistance of a friend.  She did not recognise the Form M1 in the Court Book but had signed a page in the application in the Court Book which bore the footer “M2 September 2008” and was headed Section B “Appointment of Representative”.  She did not change the heading to “Section E”.  Otherwise she did not complete or fill out the Form M1 in the Court Book (Transcript 16 March 2011, pp.15 – 16). 

18. Ms Payne completed Form M2 such that she could receive all correspondence from the Tribunal on behalf of the applicant as his authorised recipient.  She did not recall having any specific discussions with the applicant about the issue of whether or not she would receive documents relating to the review on his behalf.  The applicant did not at any stage communicate to her his desire or wish that documents from the Tribunal relating to his review application be sent to him directly and not to her (Transcript 16 March 2011, p.32).  She confirmed that while she had no specific recollection in relation to the actual Form M2 relating to the applicant, it would have been her practice to go through and explain the content of the application form with the person completing it (Transcript 16 March 2011, p.13). 

19. The applicant’s evidence was that Ms Payne was his representative and that she assisted him in relation to his application to the Tribunal.  He agreed that she had completed and that he had signed and dated Form M2. 

20. The applicant claimed that “a month or two” or “a month or a month and a half” after he filled out Form M2 he “had a look” and consulted a friend who pointed out that this was not the correct form and that he should have filled out a Form M1 (Transcript 16 March 2011, pp.39 – 40).  This would appear to suggest that to the applicant’s knowledge only a Form M2 was lodged with the Tribunal.  However he also agreed that he had signed the Form M1 which was dated 20 November 2009 (Transcript 16 March 2011, p.48).  He subsequently suggested, contrary to Ms Payne’s evidence, that Ms Payne had completed the Form M1 application form in his presence.  He then said he went to Ms Payne’s office, signed whatever form she gave him (that she had read to him) and that he submitted the form.  He then claimed he had no idea about the difference between Forms M1 and M2 (Transcript 16 March 2011, pp.48 – 50).  He did not give evidence about exactly what happened when he lodged his review application with the Tribunal on 20 November 2009, except to state that he submitted the form. 

21. In cross-examination, the applicant’s evidence was that Ms Payne completed the Form M2, that she read it to him and he signed it, although he could not “recall all of it”.  When asked if “by signing the document you understood, didn’t you, that Ms Payne, your representative, would receive documents from the Migration Review Tribunal?” his answer was non-responsive.  When asked if it was his “understanding” that Ms Payne would be receiving documents from the Migration Review Tribunal relating to his application, he again gave an answer that was not responsive (Transcript 16 March 2011, p.45 lines 25 – 30).  When asked whether it was his understanding that documents from the Tribunal would be sent to Ms Payne on his behalf, his answer was that “they would be sent to Ms Payne directly instead of being sent to you directly” he responded “No, I haven’t said like this.  Why?  Because the Tribunal has got my address, my PO Box address and Lyn’s [Ms Payne’s] address.  I – both the parties, Migration Review Tribunal and Lyn, has got my address but I never said to the Migration or by that send the parties to Lyn and not me” (Transcript 16 March 2011, p.46 lines 14 – 20).  He claimed that the Tribunal knew about the procedures and whether papers should be sent to his lawyer or to him and that he did not know about that (Transcript 16 March 2011, p.50 lines 5 – 10). 

22. It is not clear what the applicant meant by this or by his later suggestion that the Tribunal had his PO Box address and any document would be sent to that address (Transcript 16 March 2011, p.46 lines 12 – 20).  No Post Office Box address for the applicant appears in Form M1 or in either version of Form M2. 

23. I accept that, as the applicant confirmed, he had not told Ms Payne that he wanted documents from the Tribunal to be sent to him directly, although he also stated that he had never discussed with Ms Payne whether documents would be sent to him or to Ms Payne.  The Form M2 in which he appointed Ms Payne as his authorised recipient to receive documents from the Tribunal was read to him and he signed it. 

24. It can be inferred that on 20 November 2009 the applicant, or someone on his behalf, delivered to the Tribunal the completed Form M2 signed by Ms Payne and by the applicant, that this form was stamped “received” with a Tribunal stamp dated 20 November 2009 and the words “by hand” were written on it.  It can also be inferred that the words “Incorrect Form” were written on the form because the applicant was not in detention and Form M2 is designed for use by an applicant in detention. 

25. It appears that it must have been discovered (presumably by the Tribunal) that the applicant was not in detention.  A Form M1 was partially completed by someone and page six of the lodged Form M2 was inserted into that form.  The applicant signed the Form M1 lodged with the Tribunal on 20 November 2009.  The rest of Form M2 was retained on the Tribunal file (albeit marked “incorrect form”). 

26. The applicant’s evidence about being told by a friend a month or so later that he had not filled out the correct form appears to be a reconstruction of events which does not accord with the fact that he signed the Form M1 lodged on 20 November 2009 as well as the lodged Form M2.  I do not accept this evidence. 

27. While counsel for the applicant submitted that nothing turned on who filled out the whole of the Form M1, whether the applicant was present when both forms were filled out or who physically submitted the forms, it can be inferred that the Form M1 (containing within it page six from the Form M2) was lodged with the Tribunal after the Form M2, but on the same day. 

28. There is no evidence before the Tribunal as to whether Form M1 and/or Form M2 (both of which bear printed dates of September 2008) were “approved forms” (see s.347 and s.495 of the Migration Act and reg.1.18 of the Migration Regulations 1994 (Cth)). It is clear that the Tribunal proceeded on the basis that the applicant’s application for review of the delegate’s decision to cancel his visa was a valid application. There is no discussion in the Tribunal decision of any issue in relation to the form of application.

29. The Tribunal also proceeded on the basis that Ms Payne was the authorised recipient of the applicant.  It “gave” to her a letter addressed to the applicant acknowledging receipt of the application dated 23 November 2009 and an invitation to him to provide information dated 16 February 2010.

30. Ms Payne received the letter from the Tribunal dated 16 February 2010 enclosing an invitation to the applicant to provide information.  She did not recall if she had sent a copy of this letter to the applicant, but did recall that she informed him of receipt of this letter.  While she did not recall specifically doing so, she believed she would have telephoned one of his friends who spoke better English than he did and asked him to pass the information on to the applicant.  She recalled making a submission to the Tribunal in response to the Tribunal’s letter of 16 February 2010 (Transcript 16 March 2011, pp.18 – 19).  Ms Payne also provided the Tribunal with a copy of the written statement of the applicant about his employment issues.  I accept Ms Payne’s evidence that the applicant did not at any time in her dealings with him object to her receiving the letter from the Tribunal enclosing the request for further information. 

31. The Tribunal then “gave” the Tribunal hearing invitation to Ms Payne by faxed letter of 17 March 2010.  Ms Payne recognised the letter to her from the Tribunal dated 17 March 2010 enclosing a copy of the invitation to the Tribunal hearing.  I accept her evidence that she posted a copy of the invitation to the applicant at his postal/residential address under cover of a letter of 1 April 2010.  I also accept her evidence that the applicant did not at any stage communicate to her his desire or wish that documents from the Tribunal relating to his application be sent to him directly and not to her.

32. Tendered in evidence was a redacted copy of the letter of 1 April 2010 from Ms Payne to the applicant stating that Ms Payne had received the attached hearing invitation from the Tribunal.  The letter advised the applicant that he needed to sign and return the form to her as soon as possible.  Ms Payne did not recall any correspondence or communication with the applicant advising him about the Tribunal hearing invitation other than the letter of 1 April 2010 (Transcript 16 March 2011, p.32). 

33. In evidence before the court is part of a file note made by Ms Payne marked “8.30” and dated 10 May 2010 which recorded only that the applicant said that he did not get her letter of 1 April 2010.  Ms Payne’s evidence was that during that conversation the applicant told her that he did not receive any letter from her.  When asked about this telephone conversation with the applicant on 10 May 2010 Ms Payne did not recall whether she stated to him that his Tribunal hearing would be on 12 May 2010.  When asked whether in that conversation she indicated to the applicant that she had received the hearing invitation letter from the Tribunal she responded “I don’t recall whether I spoke with him about that, but that was the purpose of my telephone call” (Transcript 16 March 2011, p.30). 

34. The applicant’s evidence was that before starting this court case he had not seen the hearing invitation letter of 17 March 2010 and that he had never received any invitation to a hearing before the Tribunal before 12 May 2010. 

35. In cross‑examination the applicant said that he recognised the Tribunal invitation letter, but he was not “100 per cent” sure whether it had been sent to him.  He confirmed that his address was the address to which the letter had been sent by Ms Payne, but then claimed not to be sure whether it was his address in May 2010.  He claimed that he could not guess whether he had seen the letter of 1 April 2010 before;  that if he could see his documents at home maybe he could recall and that he was not sure; and that it was over a year before and he was not sure.  He then said he had not received the Tribunal’s hearing invitation letter.  He did not remember whether he had received a copy of the Tribunal’s response to hearing invitation form.  (Transcript 16 March 2011, pp.54 – 55).  In re-examination he said he had gone home and checked all his documents and was sure he did not receive this letter (Transcript 23 March 2011, p.7). 

36. In these circumstances counsel for the applicant contended that the Tribunal had failed to give the applicant notice of the day on which and the time and place at which he was invited to appear at the Tribunal in accordance with s.360A of the Act.

1. It was submitted first that there was no actual notice given to the applicant that a hearing was scheduled to occur on 12 May 2010 at 10.30 am, based on the evidence from the applicant, the contemporaneous file note of Ms Payne and her oral evidence.  Counsel for the applicant submitted that the applicant did not know or understand that the hearing was to be held on 12 May 2010, as Ms Payne did not recall ever telling him that this was the case, apart from in her letter of 1 April 2010. 

2. While the applicant’s oral evidence was at times inconsistent or confused, non-responsive or lacking in clarity, the evidence before the court does not establish that the applicant actually received a copy of the invitation to the Tribunal hearing dated 17 March 2010.  While I accept that Ms Payne has no recollection of discussing the Tribunal hearing scheduled for 12 May 2010 in a telephone conversation with the applicant, it would be surprising if she did not, given that she initiated the telephone contact for that purpose on 10 May 2010 and the subsequent Tribunal file note of 11 May 2010 recorded that she advised the Tribunal that “in all likelihood” the applicant would not attend. However it is not necessary to determine whether or not the applicant was on notice of the hearing. While this would be relevant if the Tribunal had failed to comply with the requirements of the Migration Act and Regulations in relation to the hearing invitation (see Le v Minister for Immigration and Citizenship (2007) 157 FCR 321; [2007] FCAFC 20 and SZIZO and Others v Minister for Immigration and Citizenship and Another (2008) 172 FCR 152; [2008] FCAFC 122), for the reasons given in this case it has not been established that there was such a failure.

3. Counsel for the applicant submitted that the applicant did not nominate Ms Payne as authorised recipient in connection with his application for review or, if he did, that any such nomination was exhausted, varied or withdrawn. 

4. What is in issue first is whether the applicant gave the Tribunal written notice of the name and address of an authorised recipient within s.379G of the Act.

5. Section 379G of the Act comes into effect if an applicant “applies for review of an MRT-reviewable decision” and “gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review” (see s.379G(1) of the Act). 

6. If these requirements are met, the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant (s.379G(1)). If the Tribunal does so, it is taken to have given the document to the applicant (whether or not the document in fact comes to the notice of the applicant) (see s.379G(2)).

7. Section 379G(3) is as follows:

   The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient. 

8. Section 379G of the Act is in the same form as s.494D in relation to the Minister giving documents to an authorised recipient and s.441G in relation to the Refugee Review Tribunal giving documents to an authorised recipient.

9. Edmonds J pointed out in Jalagam v Minister for Immigration & Citizenship [2009] FCA 197 at [36] in relation to s.494D:

   There is no requirement in s 494D (or elsewhere) for the notice appointing the authorised recipient to be in any particular form; any notice in writing meeting the elements of subs 494D(1) will suffice. There is no requirement for the notice under subs 494D(1) to be signed at all – but even if there was a requirement that it be signed by the appellant, there would still be room for application of the presumption that the appellant could meet that requirement through an agent: McRae at 663D.  

10. An application for special leave to appeal from the decision was dismissed (Jalagam v Minister for Immigration and Citizenship & Anor [2009] HCASL 190).

11. Similarly, there is no restriction in the Act or Regulations on the form of the “written notice” referred to in s.379G. The Act does not prescribe the method of giving notice to the Tribunal, or, indeed, the method of variation or withdrawal of such notice. Printed forms are an available method of giving notice to the Tribunal, but all that is required is written notice to the Tribunal of the requisite details. It is not necessary for such written notice to be given in the form in which an applicant seeks review or makes a valid application for review of an MRT-reviewable decision.

12. Moreover, s.379G(1) is concerned with “documentary evidence communicated objectively by or on behalf of the applicant” to the Tribunal, rather than with any “uncommunicated subjective intention” of the applicant (see Lo v Minister for Immigration and Citizenship and Another (2007) 159 FCR 160; [2007] FCA 553 at [28] in relation to s.494D of the Act).

13. Ms Payne wrote to the Tribunal on behalf of the applicant submitting an application for review of the decision of the delegate to cancel the applicant’s Subclass 426 visa (as well as a fee waiver application).  The applicant signed Form M2 addressed to the Tribunal in which he nominated Ms Payne as his authorised recipient.  It was in that context that Form M2 was given to the Tribunal by or on behalf of the applicant on 20 November 2009 together with a copy of the delegate’s decision.  On the same day the modified Form M1 was lodged. 

14. The applicant was a person who applied for review of an MRT-reviewable decision within s.338 as required in s.379G(1)(a) of the Act. This requirement relates to the nature of the decision of which review is sought (not the form on which an application is made). Counsel for the first respondent appeared to concede that the application to the Tribunal had to be on Form M1, albeit both Form M1 and Form M2 appear to be of the same nature, being forms bearing the printed date “September 2008” as a footer on every page.  There is no evidence as to whether the Minister had “approved” either form in writing for the purposes of s.347 or otherwise.

15. In any event it is not in dispute that a review application was made by the applicant “in the approved form” as required by ss.347 and 348 of the Act and in relation to an MRT-reviewable decision. Insofar as it was necessary for the application to be made on Form M1 to engage the jurisdiction of the Tribunal (a matter not addressed in submissions), no issue was taken about the fact that the Form apparently treated by the Tribunal as the application form was Form M1 but also included one page from Form M2 (and see s.25C of the Acts Interpretation Act 1901 (Cth)).

16. In Form M2 the applicant nominated Ms Payne as representative to act on his behalf. He asked the Tribunal to send all correspondence in connection with the review to his representative whom he nominated as his authorised recipient. The details specified in s.379G(1)(b) were included in this Form such as to constitute effective written notice of Ms Payne as authorised recipient for the applicant. This Form was retained by the Tribunal, notwithstanding that it was not the correct application form for an applicant who was not in detention. On the face of this Form M2 the applicant gave to the Tribunal written notice of the name and address of an authorised recipient authorised to do things on his behalf “that consist of, or include, receiving documents in connection with the review”.  That is apparent from the explanation in Section C of the Form.  The applicant signed and dated this form which was lodged with the Tribunal by hand and stamped “received” (albeit a handwritten notation of “Incorrect Form” also appears on the Form).  It was clear from Ms Payne’s letter that the applicant sought review of the delegate’s decision to cancel his Subclass 426 visa. 

17. In my view, by Form M2 the applicant clearly gave the Tribunal written notice of the name and address of an authorised recipient, being Ms Payne even though Form M2 was not the correct form for an applicant who was not in immigration detention. Section 379G does not require that notice of nomination of an authorised recipient has to be given in any particular way or on an approved form (see s.495 of the Act, and reg.1.18 of the Migration Regulations 1994 (Cth).) All that is required is that written notice of the details specified in s.379G(1)(b) be given by an applicant who applies for review of an MRT-reviewable decision. I am satisfied that the applicant gave such notice by lodging with the MRT the completed Form M2 which was in writing and included the name and address of Ms Payne, and in which the applicant also asked Ms Payne to do all things on his behalf, including receiving documents in connection with the review (that is, the review of the delegate’s decision to cancel his Subclass 426 visa). It was clear both from Ms Payne’s letter to the Tribunal and from the fact that a copy of the delegate’s decision and covering letter about the visa cancellation was attached that “the review” in question was the review of that delegate’s decision. 

18. Although the applicant also signed a Form M1 in relation to review of the same decision which was also lodged on the same day, this did not constitute an application for a different “review” as the applicant submitted.  The fact of an application for review is conceptually distinct from the issue of the validity of the application.  That is clear from the fact that an applicant could apply for review of an MRT-reviewable decision but, if the application was lodged out of time, the Tribunal would have no jurisdiction. 

19. What is in issue is to whom the Tribunal is to give documents when it receives an application for review, not whether there is an application that meets the requirements of s.347 in relation to both the form of the application and the time of the application such as to engage the Tribunal obligation to carry out a review (s.348).

20. The Act does not require notice of authorised recipient to be given in the form which is the relevant “approved form” for an application for review.  That is consistent with the fact that it would be open to an applicant to nominate an authorised recipient in a separate form such as Form MR5 which is entitled “Appointment of Representative/Appointment of Authorised Recipient” or otherwise in writing. 

21. I am not persuaded that the fact that the written notice of an authorised recipient was contained in a particular application form meant that the notice would only have been effective for an application made on that Form.  There were not two distinct applications for review.  While the scope of any nomination of an authorised recipient is limited to “the review”, that clearly means the review of the delegate’s decision that is in issue, in this case the Subclass 426 visa cancellation decision of November 2005.  The reference to “this review” in Form M2 did not confine the written notice of an authorised recipient to circumstances where Form M2 was the appropriate (or approved) form. 

22. The fact that Form M2 was marked “Incorrect Form” did not “exhaust” its operation as written notice of an authorised recipient as submitted for the applicant.  The Tribunal treated Form M2 as notice of an authorised recipient.  Even if Form M2 was not the appropriate application form, it was relevant and effective to give written notice to the Tribunal of an authorised recipient in connection with the review of the delegate’s decision to cancel his Subclass 426 visa of which the applicant sought review. 

23. The notice was given in relation to “this” review in the sense of the review of the visa cancellation of 11 November 2005.  There was only one such review.  The fact of subsequent lodgement of a second application form did not mean that there was a distinct application for review of some other decision or that it could be said that the notification in the Form M2 was to be confined to use in conjunction with that Form (Lo at [43]). Form M1 did not preclude written notice of nomination being given by other means. Form M2 cannot be said to have been rejected by the Tribunal in the sense of being returned to the applicant.

24. The “clear object” of s.379G is to empower (and indeed oblige) the Tribunal to give documents to an authorised recipient nominated by the applicant by way of written notice (see Le at [18]). The absence of formal statutory requirements for the giving of such notice supports the view that the notice may be given by such a method.

25. The applicant gave written notice to the Tribunal that he nominated Ms Payne as his authorised recipient in relation to the Tribunal review of the delegate’s decision to cancel his visa.  This notice was not limited to circumstances in which Form M2 was the approved application form.  The reference to “this review” in the notice of appointment in Form M2 is to the review of the delegate’s decision.  The scope of the notice was not limited to correspondence about an application made on Form M2.  The specific application for review (see Lo at [43]) was the application for review of the delegate’s decision of 11 November 2005 to cancel the applicant’s Subclass 426 visa.

26. Notwithstanding that the applicant also lodged a Form M1, Form M2 remained relevant, albeit only insofar as it contained written notice of the name and address of another person authorised by the applicant to do things on behalf of the applicant that consisted of or included receiving documents in connection with the review as provided for in s.379G. This one page containing the written notice was apparently incorporated in Form M1.

27. Importantly, there is nothing in s.379G to suggest that the obligation on the Tribunal to give documents to an authorised recipient where s.379G(1) is satisfied comes to an end otherwise than as provided for in s.379G(3) (and see to the same effect in relation to s.494D of the Act, Le at [21] and Jalagam v Minister for Immigration and Citizenship  and Another (2008) 221 FLR 202; [2008] FMCA 1417 at [27]).

28. Hence, what remains for consideration is whether the written notice of an authorised recipient given to the Tribunal by the applicant on 20 November 2009 in accordance with s.379G(1) of the Act was varied or withdrawn by him under s.379G(3) of the Act by what was contained in the partially completed Form M1 which, it can be inferred, was lodged with the Tribunal after Form M2.

29. The completed application for review on Form M1 which was lodged with the Tribunal on 20 November 2009 included not only the printed Form M1, but also what was Section B of Form M2 headed “Appointment of representative” and renumbered Section “E”.   

30. However, in contrast to the Form M2 in which the applicant had indicated that he wanted all correspondence in connection with the review sent to his representative whom he nominated as his authorised recipient, in the equivalent part of Form M1 the applicant did not tick the box that he wanted all correspondence sent to his representative whom he nominated as his authorised recipient. 

31. As set out above, Section F of that Form contains three alternatives.  The alternatives “to my representative whom I nominate as authorised recipient” and “to me at my address” were not ticked.  What was ticked was the box that was marked “to another person whom I nominate as my authorised recipient” under which it was stated, “If you tick this box, all correspondence will be sent only to the person whose details you provide below”.  However, no details of any such person were provided, either in that section or elsewhere in the Form.  The only “other person” for whom details were provided in Form M1 was Ms Payne in Section “E”. 

32. I am not satisfied that an incomplete nomination as an authorised recipient of an unspecified “another person” whose name and contact details were not provided could be said to “plainly and unequivocally” overtake and supersede the nomination in Form M2 of Ms Payne as the applicant’s authorised recipient in the sense considered in Lo at [49]. It was ineffective to vary or withdraw the notice. Section 379G(3) was not satisfied. The applicant did not vary or withdraw the notice given to the Tribunal under s.379G(1)(b) of the Act. Hence the Tribunal remained obliged to give documents to Ms Payne in connection with the review of the delegate’s cancellation of the applicant’s Subclass 426 visa.

33. Moreover, as completed, Form M1 cannot be taken as an implicit indication that the applicant intended that review documents be sent to him.  While Section F of that form included a printed statement that if the applicant did not nominate an authorised recipient all correspondence on his case would be sent to him, that section went on to require the applicant to tick one box, and select one of the three alternatives.  The applicant did not tick the box electing that correspondence be sent to him.  Nor did he insert an address for correspondence in that section of Form M1. 

34. In these circumstances the Tribunal was under an obligation to give Ms Payne any document it would otherwise have given to the applicant. It met that obligation, notwithstanding some lack of clarity in the applicant’s evidence about exactly what he expected to happen thereafter. Insofar as he referred to the Tribunal having his Post Office Box address, in fact, the only address provided by him to the Tribunal, (either in Form M2 or Form M1), was his residential address in Form M1 and Ms Payne’s contact details. The only Post Office Box address provided was Ms Payne’s Post Office Box address. Even if the applicant hoped or intended that Tribunal communications would be sent both to himself and to Ms Payne, what is in issue is not what the applicant hoped or understood in that respect, but rather whether he had given written notice under s.379G of the Act and whether he had varied or withdrawn the notice that he had given to the Tribunal. In any event, this is not a case in which it can be concluded that the relevant intention of the applicant was that documents not be sent to Ms Payne (see Song & Anor v Minister for Immigration [2005] FMCA 685). That was not his evidence. Moreover, had that been the applicant’s intention, it would have been a simple matter to tick the box “to me at my address” in section F of Form M1, which plainly provided that if he ticked that box all correspondence would be sent “only” to the address he provided.

35. The notice of invitation to the hearing was sent in the manner provided for in s.379A(5) of the Act by facsimile to the authorised recipient’s facsimile number. Hence it was deemed to be received under s.379C(5) of the Act at the end of the day it was faxed. In accordance with s.379G of the Act the invitation to the hearing was given to the applicant as required by s.360A of the Act. No failure to comply with that section has been established. It is therefore not necessary to consider whether the applicant was in fact on notice of the hearing date or whether the court ought to refuse to grant relief notwithstanding the existence of a jurisdictional error. Ground one in the amended application is not made out.

Section 360 of the Act

1. These conclusions also mean that the applicant has failed to establish a breach of s.360 of the Act as contended in ground two of the amended application. The invitation was properly given in accordance with s.360A of the Act. It complied with the requirements in s.360A in the Act, including containing details of the day on which and the time and place at which the applicant was scheduled to appear. It contained a statement about the effect of the applicant not appearing. It was sent to the authorised recipient via facsimile, consistent with s.379A(5) and as required by s.379G of the Act.

1. The invitation was sent to the authorised recipient on 17 March 2010 and the period of notice given exceeded the prescribed period of seven working days (see s.360A(4) and reg.4.21(b)(i) of the Migration Regulations). The applicant was taken to have been given the invitation to the hearing on 17 March 2010.

2. Notwithstanding that the applicant did not actually receive it, the invitation, as required by s.360 of the Act, expressly invited the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review.

3. The applicant failed to appear at the Tribunal hearing on 12 May 2010. The Tribunal had power under s.362B(1) to make a decision on the review without taking any further action to allow or enable him to appear before it.

4. Insofar as the applicant took issue with the manner in which the hearing invitation letter was addressed, it was addressed to him and was enclosed in a letter sent to Ms Payne. No error is established in this respect. The fact that he did not actually receive the letter does not mean that the Tribunal failed to comply with s.360(1) of the Act. This ground is not made out.

Whether no “evidence” for finding

1. The third ground in the amended application is that the “Tribunal erred in finding that there was no material before [it] with regard to the applicant’s current living or work arrangements”.  The particulars are that:

   There was information about the applicant’s current living arrangements and the absence of any permission for him to work in the covering letter provided with the application for review.

2. The applicant submitted that Ms Payne’s letter accompanying the visa application (which must have accompanied Form M2 which Ms Payne stated that she completed) was provided in support of both the application for review and a fee waiver application.  As set out above I accept the submission that it was in support of the application for review.  That letter referred to the Department’s re-notification of the cancellation of the applicant’s Subclass 426 visa and to the fact that he now sought a review of that decision.  It continued:

   Mr [applicant] has been living in the community without permission to work since late 2005.  He has relied on the very substantial financial support of the Bangladeshi community from that time.  Because he has been unable to work, and is ineligible for any form of Centrelink support, he has taken out a number of personal loans totalling some $6,000 which he is required to repay at some point.

   He lives with a number of other Bangladeshi men in a unit at Wiley Park and pays $140 a fortnight in rent, and contributes an amount of $50 per fortnight for food.  He keeps other expenses to a minimum, spending around $10 – 20 a week on miscellaneous items.  Whilst he has a bank account, it has a nil balance.

   If the fee of $1400 were not waived Mr [applicant] would not be able to make the application to the Tribunal.  Whilst he has been able to borrow substantial amounts of money over the last four or so years, none of his friends is in a position to loan him the application fee.

   Given the above, Mr [applicant] is seeking a waiver of the application fee.  I would be very happy to provide further information if you require it.

3. The applicant contended that in light of this information the Tribunal’s finding (in considering how to exercise its discretion as to whether his visa should be cancelled) that there was no material before the Tribunal with regard to the applicant’s current living or working arrangements was not open on the evidence before it.  It was submitted that as the evidence accompanying the review application in Ms Payne’s letter about the applicant’s living arrangements was provided in connection with the application for review as well as the application for a fee waiver, there was “no evidence” on which the Tribunal could make the impugned finding. Hence it was said that the exercise of the Tribunal’s discretion miscarried as the impugned finding bore upon the Tribunal’s exercise of that discretion. It was submitted that even if there are no mandatory relevant considerations legally required to be considered under s.116 of the Act consideration was given to the applicant’s living and work arrangements in the Tribunal’s reasons and hence it was treated as a relevant consideration. (See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [69].)

4. The short answer to this ground is that the finding in issue referred to the applicant’s “current” living or working arrangements.  This was clearly a reference to the situation at the time of the Tribunal’s decision of 15 June 2010.  The letter accompanying the review application was dated 20 November 2009.  The Tribunal did not say there was no material at all before it with regard to the applicant’s work and living arrangements since the date of cancellation of his visa.  Rather it referred to the absence of “current” information in the context of having observed that the applicant did not attend the hearing and that “no further evidence was able to be collated with regard to the exercise of [its] discretion” to set aside the cancellation and that the applicant had “provided no further evidence to the Tribunal concerning his current personal or financial circumstances or his current state of health”.  It was open to the Tribunal to make such a finding on the evidence before it. 

5. It was not necessary for the Tribunal to refer specifically to the applicant’s living and work arrangements as at 20 November 2009 (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14], and see Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22 at 593, per Kirby J and WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46].)

6. The fact that the applicant had provided information in relation to his living and work arrangements at the time of the visa application is not such as to mean that the Tribunal fell into error in making the finding impugned under ground three in the amended application in the manner contended for by the applicant.  This ground is not made out.

7. As none of the grounds contended for the applicant are established, it is not necessary to consider whether the court should exercise its discretion to withhold relief.  The application should be dismissed. 

I certify that the preceding one-hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  31 August 2011