SZJHO v Minister for Immigration - [2006] FMCA 1802

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJHO v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1802

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A, 441C

Minister for Immigration v SZFHC (2006) FCAFC 73
VNAA and Anor v Minister for Immigration (2004) 136 FCR 407

Applicant:

SZJHO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2479 of 2006

Judgment of:

Burnett FM

Hearing date:

4 December 2006

Delivered at:

Sydney

Delivered on:

4 December 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms Z Brauer
Clayton Utz

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $1,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2479 of 2006

SZJHO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is a hearing for an application for an order to show cause. On the hearing of such an application the Court may, if it is not satisfied that the application has raised an arguable case for relief, dismiss the application.
The facts broadly are these. The applicant made an application for a protection visa on 6 March 2006. It was accompanied by submission of a claim to be a refugee also dated 6 March 2006. The applicant submitted his application to the Department of Immigration and Multicultural Affairs (“the Department”). The department wrote to the applicant on 13 March 2006 noting that they had received his application and it was being processed by the office and at the time he received a bridging visa.
By a letter dated 19 April 2006 the applicant was informed that his application had been refused and was informed of his rights. That letter also enclosed a copy of the delegate’s reasons for decision or decision record. He made application for review to the Refugee Review Tribunal (“the Tribunal”) on 19 April 2006 and that application was given a file number or case number 060425642, which I will refer to from here on as “642”. It seems also that perhaps by another process, by facsimile or letter or otherwise, the application was also forwarded to the Tribunal a number of days following and, by reason of some anomaly in the registry, was given a second case number, that being case number 060430071. I will refer to that as “071” from here on in.
The applications were in fact identical but, for some reason, separate case numbers were given and, at least to a certain point, the applications were treated separately although, for reasons I will come to shortly, only one decision was ultimately rendered.
In respect of case 642, on 13 May 2006 the Tribunal wrote to the applicant informing him that it had received his application and it informed him of his rights and obligations. That seems to be the extent of the Tribunal’s dealings with case number 642. The carriage of the application appears to have substantially occurred in case 071.
On 15 May 2006 the Tribunal wrote to the applicant, in respect of case 071, informing him that it had received his application on 15 May 2006 and again detailing his rights and obligations. On 26 May 2006 the Tribunal wrote to the applicant inviting him to attend a hearing and informing him that he could come to the hearing to give oral evidence and present arguments in support of his claim and to obtain oral evidence from another person or persons. He was informed that the hearing would be conducted from 1.30 pm on 23 June 2006.
No response was received to the hearing invitation. On 14 July 2006 the Tribunal wrote to the applicant informing him that the Tribunal had considered all the material relating to his case and had made its decision and that its decision was to be handed down on 8 August 2006 at 2.30 pm. On 13 August 2006 the Tribunal’s decision, signed 13 July 2006, was handed down. The decision was made to affirm the decision by the delegate not to grant the applicant a protection visa.
One particularly material issue in this case is that the initial application as had appeared on both case files noted the applicant’s address as 72 Patrick Street, Hurstville New South Wales. On 15 June 2006 the Tribunal received a notice of change of address details dated 13 June 2006 and signed by the applicant. It noted the new address as address A. I note from the court book, and I assume that this reflects the case records, that there are two such notices of change of address details which would suggest that both case records were noted with the change of address details of the applicant. That is to say that case 642 and case 071 each had placed upon their respective records the notice of change of address details.
Following the change of address details, it does appear that the Tribunal did in fact correspond or seek to correspond with the applicant by writing to him at address B (see court book, page 78). That particular piece of correspondence was marked return to sender and is noted as having been received back at the Tribunal on 26 July 2006. The franking on the postage appears, although it is partly obliterated, to be 17 July 2006, suggesting it was sent on 17 July and received back, as I have indicated, on 26 July. The court book, and I assume the record, does not suggest that any other correspondence was returned to the Tribunal in similar terms, namely marked “return to sender”.
In the further amended application filed by leave today the applicant notes the following grounds. The first of two grounds is that the Tribunal failed to take account of relevant material, noting in particular that the Tribunal found the applicant failed to appear at the scheduled time on 23 June 2006 and did not contact the Tribunal. The applicant contends that it had contacted the Tribunal and notified it of its change of address on 15 June 2006, referring to court book, page 73. That is in fact a reference to the formal notice of change of address. Page 78 of the court book is a reference to the letter which was returned to the Tribunal “return to sender”. The applicant also appears to rely upon this as evidence of the Tribunal’s knowledge of change of address.
The second ground is that the Tribunal failed to act in a bona fide manner, the particulars being that the Tribunal had created two files for the same application and that in doing so it placed all correspondence from the applicant on file 562. I think the application means to say the Tribunal placed all correspondence due to the applicant in respect of file 642 on file 071. The application as it reads in paragraph 2(b) otherwise does not quite make sense.
The applicant also states in support of his allegation that:
a)the Tribunal failed to act in a bona fide manner by conducting a no reply check of its procedures to ensure that the invitation had been forwarded; and
b)the Tribunal failed to inquire whether the reply had been received by it and not yet attached to the file and then to check on the file that this was the most recent address given to the Tribunal for the applicant in writing by the client, concluding in its application by asserting that if either or both these checks had been properly carried out the Tribunal would have discovered that the applicant had notified the Tribunal of a changed address and had not received the invitation.
The thrust of the grounds of the application comes back to the question of whether or not the applicant was properly served with the invitation to attend before the Tribunal. Section 425 of the Migration Act 1958 (Cth) (“the Migration Act”) provides that 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. Section 425A of the Migration Act then makes provision for the Tribunal to invite applicants for review by its notice of invitation to appear in these terms:
Section 425A(1)
(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.
Subsection (2) provides:
The notice must be given to the applicant
(a) except where paragraph (b) applies – by one of the methods specified in s.441A.
Section 441A of the Act deals with the methods by which the Tribunal gives documents to a person other than the secretary. Subsection (1) deals with coverage of section. Section 441A(1) provides:
(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.
…
Dispatch by prepaid post or by other prepaid means
(4)    Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a)    within 3 working days (in the place of dispatch) of the date of the document; and
(b)    by prepaid post or by other prepaid means; and
(c)     to:
(i)the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii)the last residential or business address provided to the Tribunal by the recipient in connection with the review.
The Act provides in s.441C circumstances when a person other than the secretary is taken to have received a document from the Tribunal. Section 441C(1) is in these terms:
This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).
The procedure provided concerning despatch by prepaid post or other prepaid means is contained in subsection (4) which provides:
(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document
In terms of the facts of this case it would then seem, having regard to the scheme of the legislation which I have just identified, that the invitation to attend a hearing of the Tribunal was forwarded under cover of a letter dated 26 May 2006 which would mean that it was deemed to have been served by 7 June 2006, and certainly before 13 June 2006, which is the date of the notice of change of address details.
The question whether or not compliance with s.425A of the Migration Act exhausts the obligation of the Tribunal to invite an applicant under s.425 or whether additional steps must be taken by the Tribunal to comply with its obligation under s.425 was the subject of consideration by the Full Court in a decision of Minister for Immigration v SZFHC [2006] FCAFC 73. The facts of that case were slightly different to the facts of this but I think the principle which is to be elicited from that authority applies with equal force in the circumstances before me.
In particular, the matter which I was most concerned about was the deeming effect of s.441C applying in circumstances where it is at least arguable that a notice of change of address had come to the attention of the Minister after he had already issued his invitation to the applicant and the significance of that matter. The court in SZFHC considered a similar proposition and arguments that were made in relation to that by the respondent in that case. It was unequivocal in its rejection of a permissive view. The Court, at [39], said this:
In view of the decision in VNAA, it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s 425A (in fact, two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.
In my view the effect of the authority in SZFHC is clear. The applicant was deemed to be served and accordingly had notice of the hearing before the Tribunal. It is immaterial that by some later event the Tribunal may or should have been aware of a change of address.

The focus of inquiry must be upon whether there has been service in accordance with one of the methods provided for under s.441A: see s.425A(2)(a). Section 441A(3)(c)(i) requires postage to the “last address for service provided to the Tribunal”. That matter must be examined in light of information in the hands of the Tribunal on the date of postage, not some later date. As a matter of fact I am fortified in my view that the applicant was properly served because as the Court record indicates, there was no return of the invitation to hearing to the Tribunal which of course stands to reason given that the notice of change of address is dated 13 June 2006 and the invitation was sent on 26 May 2006. That of course is in contrast to a later document forwarded by the Tribunal to the earlier address which was in fact returned to the Tribunal annotated, “return to sender”, that being the document I earlier referred to sent by the Tribunal on or about 17 July 2006.
Given my view in relation to service and having regard to the Tribunal’s decision signed 13 July 2006, I am satisfied that the Tribunal was well within its rights in deciding as it did that the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear and was within its rights pursuant to s.426A of the Migration Act to make its decision on the review without taking any further action to enable the applicant to appear before it.

In reaching its decision, and I will not rehearse the full detail of the Tribunal’s decision but the Tribunal reviewed the relevant facts and law presented to it based upon the applicant’s application, the decision made by the delegate, and the application made to the Tribunal itself and in doing so properly, in the absence of the applicant, proceeded to make its determination. The determination was one which was open to it on the facts presented before it and otherwise open at law.
For completeness I should address the second matter raised in the grounds of appeal which concerns the matter of two files. While it is quite clear that in this case there were two files created, I accept the submissions made by Ms Brauer, for the Minister, that nothing turns on that matter. The applicant was given an invitation to appear before the Tribunal in respect of that application which was subsequently the application determined by the Tribunal and as the court record indicates, application 642 did not appear to proceed beyond a point of acknowledgment of receipt of the application.
In the circumstances, I am not satisfied that the application has raised an arguable case for relief.
I dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $1,750.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate:

Date: 8 December 2006