SZJSP v Minister for Immigration
[2007] FMCA 1205
•26 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJSP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1205 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.57, 91X, 424A, 425A, 441A, 441AA, 441G, 494A, 494D FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Le v Minister for Immigration and Citizenship [2007] FCAFC 20 Lee v Minister for Immigration and Citizenship [2007] FCAFC 62 Li v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 219 Lo v Minister for Immigration and Citizenship [2007] FCA 553 Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 204 CLR 82 SZCCZ v Minister for Immigration & Anor [2006] FMCA 506 SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63 VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311 |
| Applicant: | SZJSP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3424 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 17 May 2007 |
| Last submission received: | 4 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2007 |
REPRESENTATION
| Solicitor for the Applicant: | Mr M Jones, of Michael Jones – Solicitor |
| Counsel for the First Respondent: | Ms V McWillaim |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 21 November 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3424 of 2006
| SZJSP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZJSP”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 21 November 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 1 October 2006 and forwarded to the applicant by mail on 17 October 2006, affirming a decision of a delegate of the first respondent made on 17 May 1997, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the FederalMagistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with a hearing under r.44.12 and set the matter down for a final hearing.
A Court Book (“CB”) consisting of two volumes was prepared by the first respondent's solicitors and filed on 17 January 2007.
A supplementary Court Book was filed on 7 May 2007. I have marked the Court Books Exhibit “A1”, “A2” and “A3”respectively, and they were read into evidence.
At the commencement of the hearing, an affidavit of Adrian Joel, solicitor, sworn on 15 May 2007, was tendered. As there was no objection by the first respondent, the affidavit was admitted into evidence.
Background
The Tribunal decision of G Short, reference N060372803, provides the following background information:
This is a review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 17 May 1997 refusing an application by the Applicant for a Protection (Class AZ) visa. The Applicant was notified of the decision under cover of a letter dated 17 May 1997 and the application for review was lodged with the Tribunal on 17 June 1007. The Tribunal, differently constituted, affirmed the decision under review on 22 April 1998. The Applicant sought review of that decision in the courts and on 11 April 2006 a Federal Magistrate ordered, by consent, that a writ of certiorari issue quashing the decision of the Tribunal and that a writ of mandamus issue directing the Tribunal to determine the matter according to law. The matter is now before the Tribunal pursuant to the orders of the Federal Magistrate.
The Applicant is a citizen of Pakistan. He arrived in Australia as a visitor in July 1994 and on 25 August 1994 he applied to the then Department of Immigration and Ethnic Affairs for refugee status under the Migration Act 1958 (the Act). As from 1 September 1994, by operation of section 39 of the Migration Reform Act 1992, his application was deemed to be an application for a Protection (Class AZ) visa.(CB 144)
The applicant’s claims are set out in the Tribunal decision under the heading “Claims and Evidence” and the following summary is taken from the applicant’s original visa application:
The Applicant said that he was a ‘Mohajir’ (literally ‘refugee’, meaning the descendant of Urdu-speaking Muslims who migrated to Pakistan from India after Partition in 1947). He said that he belonged to the Mohajir Qaumi Movement (MQM) and that the Government hated the MQM. He said that the police, the Army and ‘all power’ belonged to the Government. He said that his father had been arrested by the police in 1988 in Sharifabad in Karachi. He said that he himself had joined the MQM in Sharifabad in 1986. He said that he had not held any rank or official position in the party. He said that he had been forced to leave work in Karachi in 1987 because of discrimination against Urdu-speakers on the part of Punjabi officers. He did not otherwise suggest that he himself had had any problems in Pakistan.(CB 146-147)
Application for review of the Tribunal’s decision
On 21 November 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. At the first court date, the applicant was granted leave to file an amended application by
13 March 2007 setting out complete particulars of each ground of review relied upon. He complied with this order and filed an amended application on 9 March 2007 with the following grounds:
1. The Tribunal committed jurisdictional error by failing to consider whether the applicant would face persecution as a member of a particular social group, ie descendants of former immigrants from India to Pakistan.
2. The Tribunal committed further jurisdictional error by failing to notify the applicant’s authorised recipient, in the prescribed manner, of the notice to attend a hearing.
Particulars
The applicant appointed Ms Barbara Maher, Adrian Joel & Co., 225 Crown St. Darlinghurst as his authorised recipient (Cb51).
On 1 August 2006 the Tribunal sent a notice of the hearing to “Ms Barbara Maher, Adrian Joel & Co, Fax: 02 9261 3386”. On the same day or a later day, the Tribunal sent the same document by mail to “Adrian Joel & Co, 225 Crown St, Darlinghurst NSW 2010” (see supplementary documents to be filed by the Respondent).
To comply with the notice provisions in the Act, the Tribunal was required to send the notice to the person specified as the authorised recipient at the address given for correspondence, ie “Ms Barbara Maher, Adrian Joel & Co, 255 Crown St, Darlinghurst”. Neither the fax nor the letter addressed to the firm only was sufficient compliance (see Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147).
Submissions and reasons
At the commencement of the hearing, Mr Jones, appearing for the applicant, advised the Court that only the second ground of the amended application was pressed, namely that the Tribunal failed to notify the applicant’s authorised recipient, in the prescribed manner, of the Tribunal hearing. Counsel for the first respondent had been so advised prior to the Court hearing and the submissions from both sides addressed this single issue.
Mr Jones indicated that in the section of the Tribunal application form under the section provided to nominate an adviser, the applicant named Ms Barbara Maher of Adrian Joel & Co (a firm of solicitors) as her adviser.(CB 47-50) The street address of the firm was given together with telephone and fax numbers. The question “Do you wish copies of correspondence from the Tribunal to go to your advisor?” was not answered. Apparently together with this form looks to be a Department form to appoint a person to act and receive all correspondence relating to a case. Ms Maher was again named as such a person, together with the same street address.(CB 51) Following the remittal of the first Tribunal decision, the Tribunal sent a fax addressed to “Barbara Maher, Adrian Joel & Co” to the facsimile number given on the Tribunal application form.(Exhibit “A3”, p.4)
Mr Joes argues that s.425A of the Act requires the Tribunal to notify an applicant about a Tribunal hearing by one of the methods listed in s.441A, unless the applicant is in detention. Section 441G, however, specifies that in certain cases, documents which would otherwise be given to the applicant must be given to another person. Section 441G comes into effect if “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 consists of, or include, receiving documents in connection with the review”: s.441G(1)(b). The section was inserted into the Act by Act Number 58 of 2001, which commenced on 10 August 2001. Mr Jones acknowledges that an issue which may arise as is whether s.441G applies only when an applicant notifies the Tribunal after the commencement date of an “authorised recipient”.
Mr Jones then referred to SZCCZ v Minister for Immigration & Anor [2006] FMCA 506 at [81] and [86] per Barnes FM:
81. It was not disputed by counsel for the first respondent that ss.441A and 441G of the Migration Act were applicable despite the fact that the application to the Tribunal was made in 1999 which was prior to the time at which Division 7A of Part 7 (in which these sections appear) came into effect (10 August 2001). (See Act 58 of 2001.) It was also conceded for the respondent that s.441A had to be read with s.441G of the Act and that for the purposes of those provisions the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant (see s.441G(2)).
86. …Further I agree, consistent with the approach (albeit in a different context) taken in Morsed and Chen, that if the deemed notification provisions of the Act are relied on to establish notification, strict compliance should be required.
Mr Jones submits that s.441G did apply in respect to the invitation to attend the hearing, and that was not complied with.
Mr Jones referred the Court to Le v Minister for Immigration and Citizenship [2007] FCAFC 20 which held that notification in that case, which was required under s.494D of the Act, could be given by any method that the Minister considered appropriate. However, in Le, the notice to the unauthorised recipient substituted a notice to the applicant under s.57, which does not itself specify a method of delivery. In the present case, notice to the authorised recipient under s.441G substituted a notice to the applicant which would otherwise have been given under s.424A. The latter section specifies that notice must be given by one of the methods set out in s.441A.
Mr Jones submits that whether the substituted notice had to be given by one of the methods in s.441A, or whether it could have been given by any method the Tribunal considered appropriate, it was not properly given. Despite the method, the notice had to be given to the authorised recipient instead of the applicant (VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311) and addressed to the authorised recipient by name (Li v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 219).
Mr Jones submits that of the other methods available under s.441A, only the post and facsimile methods are relevant: s.441A(4) and (5). Section 441A(4) was not complied with because the letter was posted to a firm of solicitors not the nominated authorised recipient, Barbara Maher. Section 441A(5) was not complied with because the document was not “transmitted”. A copy of the facsimile contains a handwritten note indicating that the transmission had failed because the recipient’s machine was faulty and the original letter had been mailed to Adrian Joel & Co at their Darlinghurst address: Exhibit ‘A3’. Mr Jones submits that in this case, the Tribunal could not reasonably have believed that this method was appropriate since it was on notice that the Ms Maher had not been employed by the firm for many years and the applicant’s notice would not be passed on.
Mr Jones submits that in Le, the Full Federal Court did not need to find that sending a letter to the authorised recipient at an address where it was known that he was no longer at was appropriate in the circumstances of that case. Regardless of where it was sent, the letter in that case did not satisfy the statutory requirements.
Ms McWilliam, appearing for the first respondent, indicated that she relied on the following three arguments:
a)Section 441G of the Act does not apply to this case.
b)Even if it did apply, the authorised recipient (if still authorised) and the applicant were properly notified in accordance with s.441A of the Act.
c)If it is found that the authorised recipient was not properly notified and jurisdictional error is established, discretionary relief should be refused on the basis of acquiescence and lack of prejudice to the applicant.
Ms McWilliam submits that in respect of the argument that s.441G of the Act does not apply, the Tribunal was made aware, by a telephone call on 1 August 2006 which was confirmed in writing on 10 August 2006 (CB 125), that the person recorded as the “authorised recipient” in 17 June 1997 was no longer authorised to act for the applicant.(CB 51) Accordingly, the Tribunal sent the notice to the last residential address provided to it by the recipient in connection with the review in accordance with s.441A(4)(c)(ii) of the Act.(CB 47, 120) Although it was not obliged to do so, the Tribunal took a practical approach, and also sent the notice to two other addresses it was aware of through previous Court proceedings.(CB 121)
Ms McWilliam submits that the second issue is that if s.441G is found to have applied, then the authorised recipient was notified by letter on
1 August 2006: Exhibit “A3”. The fact that the authorised recipient was not expressly named on the envelope does not negate proper notification, as the letter itself named her. In addition, s.441G(2) expressly permits the Tribunal to also give the applicant the document, which it did.
Ms McWilliam submits that there was no prejudice to the applicant. If it is found that the notification requirements of the Act were not complied with, the Court should refuse to grant relief on the basis that there was no prejudice to the applicant, and that the applicant’s acquiesced to the Tribunal’s approach: Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 204 CLR 82 at 102 and 122. It is submitted that the applicant attended the hearing and was assisted by a newly instructed adviser, although the adviser was not present at the hearing.(CB 124) Neither the applicant nor the adviser complained about the way he was notified.
On 21 May 2007, leave was granted for the parties to provide supplementary submissions in relation to Lee v Minister for Immigration and Citizenship [2007] FCAFC 62 and SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63, both of which were delivered on 11 May 2007. Ms McWilliam filed supplementary submissions for the first respondent on 29 May 2007 and Mr Jones filed further submissions for the applicant on 4 June 2007.
Ms McWillaim submits that SZFOH relates to the construction of s.441G of the Act and whether a failure to comply with that section amounts to jurisdictional error. SZFOH also relates to the exercise of the Court’s discretion if jurisdictional error is found. With respect to the first issue, Besanko J, with Moore J agreeing, stated at [25]-[26]:
25 In my respectful opinion, the Magistrate was wrong to conclude that service on the authorised recipient was immaterial. Sections 441A, 441C and 441G are in similar terms to ss 379A, 379C and 379G of the Act. They link back to ss 425, 425A and 426A in a similar way to the way in which ss 379A, 379C and 379G link back to ss 359A, 359C and 360. Although the issue in Lee concerned an invitation to comment rather than an invitation to appear, the reasoning I adopted in Lee applies with equal force to the proper interpretation of ss 425, 425A, 426A, 441A, 441C and 441G and I take the liberty of repeating what I said in that case:
"The questions raised by the notice of contention relate to the proper construction of s 379G and the relationship of that section to s 359A and other sections in the Act. Although it is submitted by the first respondent that the proper construction of s 379G is to be considered in light of other sections in the Act, it is convenient to consider first the construction of s 379G simply by having regard to the terms of the section itself.
On the face of it, the section is expressed in mandatory terms, and the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. If a document is given to an authorised recipient by the Tribunal then it is taken to have given the document to the applicant. The qualification in subsection (2), namely, ‘However, this does not prevent the Tribunal giving the applicant a copy of the document’, makes it clear that the earlier provisions do not prevent the Tribunal from giving the applicant a copy of the document. The word ‘this’ in the qualification is a reference to the statement in the immediately preceding sentence whereby it is said that by giving a document to the authorised recipient the Tribunal is taken to have given the document to the applicant, and is not a reference to the section as a whole. In other words, the qualification operates where the document has been given to the authorised recipient, not as an alternative to the giving of the document to the authorised recipient. Furthermore, it is not without significance that what may be given to the applicant under s 379G(2) is a copy of the document. If the process of construction was restricted simply to the terms of s 379G, I do not think that the qualification in subsection (2) has the effect of giving the Tribunal the option of giving a document to the authorised recipient or to the applicant. The qualification simply makes it clear that if a document is given to the authorised recipient, the Tribunal is not thereby prevented from also giving a copy of the document to the applicant.
This construction of s 379G is consistent with what might be considered to be the purpose of the section. An applicant may have language difficulties or other difficulties in terms of his or her ability to comprehend written documents, and, in those circumstances, it may be considered desirable to give the applicant the right to nominate a person who the applicant knows will receive documents. This construction of the section places no additional or higher obligation on the Tribunal; it can give a document to an authorised recipient instead of an applicant. On the other hand, it is difficult to see why the section would be in the terms in which it is if the intention of Parliament was to give the Tribunal an option as to the person to whom it gives documents.Section 379G must of course be construed having regard to its place in the Act and in light of other relevant provisions. Section 359A does not refer to s 379G; in subsection (2) it simply refers to one of the methods of giving a document to an applicant specified in s 379A. Section 379A does not refer to s 379G.
One construction of the relevant provisions is that s 379G is simply not relevant to the obligation in s 359A. On this construction s 379G would have no role to play in a case such as the present. As long as the appellants were given the letter by one of the methods specified in s 379A then the provisions of s 359A were satisfied. A second construction of the relevant provisions is that s 379G has a role to play in the operation of s 359A, but, because of the qualification in s 379G(2), its operation is such that, in the context of s 359A, the Tribunal has the option of giving the document to an applicant in accordance with one of the methods specified in s 379A, or giving it to the authorised recipient in accordance with the provisions of s 379G. In my opinion, neither of these constructions is the proper construction of the relevant provisions.
In my opinion, if the circumstances for the operation of s 379G are satisfied then the invitation under s 359A must be given to the authorised recipient. It is not sufficient to give the document to the applicant by one of the methods specified in s 379A and I respectfully disagree with the reasoning of Mansfield J in Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221. Furthermore, I doubt that proof of actual service on, or receipt of the document by, the applicant overcomes the failure to comply with s 379G or means that such failure does not give rise to jurisdictional error. However, it is not necessary for me to decide this point.
In my opinion, in terms of the identity of the person who must be given a relevant document, s 359A and s 379A must be read as subject to s 379G. The various sections must be read so that they operate conformably with each other: Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J (as he then was); The Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 479 per McHugh and Gummow JJ; DC Pearce and RS Geddes ‘Statutory Interpretation in Australia’ (6th ed, 2006) [4.3]). There is little difficulty in doing that in the case of s 379A because subsection (1) of that section refers not to an applicant, but to a person the Tribunal is required or permitted to give a document to, and it defines that person as a recipient. If s 359A and s 379A are not read as subject to s 379G in the sense I have indicated then the latter section would have very little work to do and that would seem to be inconsistent with the plain intent of the section. Nor do I think that one can read s 379G as qualifying s 359A and s 379A but, because of the qualification in s 379G(2), there is an alternative available to the Tribunal of giving the document to the applicant as distinct from his authorised recipient. Once s 359A and s 379A are read conformably with s 379G, the section operates according to its clear terms, and if there is an authorised recipient, the document must be given to that person by the Tribunal. Furthermore, it seems to me that to ensure the sections operate conformably with each other, the document must be given to the authorised recipient by one of the methods specified in s 379A of the Act. That is the effect of the clear direction in s 359A(2)(a) of the Act. In this case the authorised recipient was not given the document and therefore the relevant exception in s 360(2) was not established. The Tribunal failed to comply with the obligation in s 360(1) of the Act, and that constituted a jurisdictional error.
Submissions were made about the effect of the note in s 379G and it was suggested that it was of assistance in resolving the point of construction. The note is not part of the Act: Acts Interpretation Act 1901 (Cth) s 13. It is extrinsic material that might be considered because it is in the document containing the text of the Act as printed by the Government Printer: Acts Interpretation Act 1901 (Cth) s 15AB(2)(a). However, I do not think the note is of any assistance in resolving the point of construction.
Since preparing these reasons in draft, I have considered the decision of the Full Court of this Court in Le v Minister for Immigration and Citizenship [2007] FCAFC 20 (‘Le’). There is nothing in the reasons for judgment in that case which is inconsistent with the conclusions I have reached. The Court was there considering the provisions of ss 57, 494A, 494B and 494D of the Act. The Court left open the question of whether there was jurisdictional error if it was established that the document did in fact come to the attention of the applicant ([31]). The Court came to the conclusion that the Minister could decide how he gave the document to the authorised recipient under s 494D [19]. As I have said, I have reached the conclusion that under ss 359A, 379A and 379G the authorised recipient must be given a document by one of the methods specified in s 379A. That follows in my view from the express terms of s 359A(2)(a) of which there was no equivalent in Le.
Since preparing these reasons, I have also considered the reasons for judgment of Conti J in Lo v Minister for Immigration and Citizenship [2007] FCA 553 (‘Lo’). That decision concerned the appointment of an authorised recipient under s 494D of the Act and may be distinguished on the ground that Conti J found that at the relevant time there was no appointment of an authorised recipient in existence. To the extent that his Honour may have decided the case on a broader basis which is inconsistent with the reasoning set out above, I would, with respect, decline to follow the decision in Lo."
26 It follows from this reasoning that if the invitation to appear was not given to the appellant’s authorised recipient, the provisions of the Act were not complied with and there has been jurisdictional error. As I said in Lee, whether there is a possible exception if actual service on the appellant is established may be put to one side because it is not suggested that it was established in this case.
Ms McWilliam submits that as in Le (which Besanko J referred to in Lee and quoted in SZFOH at [25]), the Court left open the question of whether there was jurisdictional error if it was established that the document did not come to the attention of the applicant: see Le at [31].
Ms McWilliam submits that the extract from Lee also contains Besanko J’s obiter dicta statement, doubting that proof of actual service on, or receipt of the document by, the applicant overcomes a failure to comply with s.379G of the Act (which is similar in terms to s.441G of the Act), and means that such failure does not give rise to jurisdictional error. However in Lo v Minister for Immigration and Citizenship [2007] FCA 553 at [44], Conti J accepted the submission of the Minister that a breach of s.494D(1) (which is in terms equivalent to s.441G of the Act) does not constitute jurisdictional error in circumstances where the principal receives actual notice. Lo was distinguished in SZFOH per Besanko and Buchanan JJ, on the basis that Conti J found that at the relevant time there had been no appointment of an authorised recipient.
Ms McWilliam submits that in this matter, SZFOH is distinguishable and Lo remains applicable for the following reasons:
a)As in Lo, there was no appointment of authorised recipient. Section 441G(3) provides that an applicant may vary or withdraw notice of the authorised recipient at any time. This does not exclude the applicant, through his or her previous authorised recipient, notifying the Tribunal that the notice is withdrawn. The authorised recipient’s notification to the Tribunal is analogous to a solicitor filing a Notice of Ceasing to Act in Court proceedings. To construe a provision of the Act otherwise would lead to the absurd result that the authorised recipient cannot notify the Tribunal whether it does or does not act for a particular applicant.
b)As in Lo and SZFOH, there was actual service on the applicant.
A Tribunal case note on 1 August 2006 contains the following comments:
The invitation to hearing letter was faxed to the AR and during observation of the fax transmission the fax machine indicated that three (3) pages of the eight (8) page fax were successfully transmitted before the fax failed.
The adviser Adrian Joel phoned and said he is not representing the review applicant and has not had contact with [SZJSP] since 1998.
Mr Joel agreed to formally notify the Tribunal in writing that he no longer represents the review applicant.( Exhibit “A3”, p.4)
A letter from Adrian Joel & Co dated 10 August 2006 states:
I do not act for this person. Please alter your records accordingly.(CB 125)
As at 1 August 2006, the applicant was no longer represented by an authorised recipient and a new notification letter of that same date was sent to the applicant at Bankstown with copies forwarded to a post office box at Kogarah and a residential address in Strathfield.(CB 120-121) The letter sent to Bankstown was subsequently returned with a notation “not known”.(CB 122)
The affidavit of Adrian Joel, sworn 15 May 2007 states:
1. I have been informed that according to a file note held by the Refugee Review Tribunal I had a telephone conversation with a Tribunal officer on 1 August 2006 in relation to the Applicant in this matter.
2. I do not have any actual recollection of that conversation but I do not doubt that it occurred. I can say for certain that if I was asked whether Barbara Maher was an employee of my firm I would have said that she had not worked for the firm since about 1998. If I was asked whether a letter addressed to her at the address of my firm would reach her, I would have said that it would not.
In the circumstances, I accept the argument submitted by
Ms McWillaim set out at [26](a) above and agree that after 1 August 2006, it was not possible to serve the previously identified authorised recipient, Ms Maher, in accordance with s.441G(3); and that Ms Maher had withdrawn as an authorised recipient by a method analogous to a solicitor filing a Notice of Ceasing to Act. A rejection of this process by this Court produces an absurd result without means of resolution.
Section 441G(2) of the Act states:
(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.
The evidence set out above clearly indicates that the Tribunal, through the first letter to the authorised recipient, also elected to provide the applicant a copy of that letter at his last known address. The address had been provided to it through consent orders made by Scarlett FM. Such a situation was noted in SZFOH at [25].
In respect of the exercise of the Court’s discretion, Ms McWilliam submits that if jurisdictional error is found, SZFOH also confirms the residual discretion of the Court to refuse to grant relief in circumstances where a finding of jurisdictional error does not make a difference to the outcome. In SZFOH at [60] Buchanan J stated that it could not be said that the error in that case made a difference to the Tribunal’s deliberations. It is submitted that in this case the opposite circumstance arises, in that any error could not possibly make a difference to the Tribunal’s deliberations, given that the applicant appeared at the hearing and was represented by another migration agent. Accordingly, the cases referred to in SZFOH at [60] apply to this case.
Mr Jones contends in his further submissions that both SZFOH and Lee support his case. The question of whether there was jurisdictional error if the authorised recipient actually received the notice or learned about it in some other way, was left open in SZFOH and Lee. The obiter dicta comments of Besanko J were, however, directly contradicted in SZFOH at [57]-[59] by Buchanan J:
57 The first respondent argues in the present case that there is evidence that the authorised recipient knew of the notice inviting the appellant to appear because the RRT records in its decision that there had been a telephone communication with the authorised recipient who said "that a response about the hearing would be sent as soon as possible". The first respondent also relies upon the fact that notification was sent to the appellant at the last residential address given to the RRT by the appellant. It may be accepted, for present purposes, that under the general law effective communication might be sufficient to satisfy natural justice or procedural fairness requirements. However the general law does not apply to the issues raised by the present proceedings. Section 425A and s 426A appear in Division 4 of Part 7 of the Act. Sections 441A, 441C and 441G appear in Division 7A of Part 7 of the Act. Section 422B (which is the first section in Division 4 of Part 7 of the Act) provides:
"(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with."58 Consequently the directives in s 441G and the way in which they interact with the provisions of s 425A, 426A, 441A and 441C are an exhaustive statement with respect to natural justice and procedural fairness. Correspondingly they must be complied with strictly – see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009.
59 The failure to send the notice under s 425A to the authorised recipient (instead of the appellant) at the last address provided to the RRT by the authorised recipient was a fatal failure to comply with the statutory regime with the result that the Tribunal’s decision was made without jurisdiction and is invalid.
Further, Lo was expressly disavowed by Moore J in SZFOH at [1].
Mr Jones argues that Lo is distinguishable from this case because Lo found that there was no “authorise recipient” at the relevant time.
Mr Jones also relies on SZFOH at [53] per Buchanan J in that a notice under s.425A, even when sent to the authorised recipient under s.441G, must be sent by one of the methods listed in s.441A. Mr Jones noted that Buchanan J in SZFOH found no contradiction with the approach in Le and in Lee. Justice Besanko in SZFOH at [39] and [41] also held that the documents must be given to the authorised recipient by one of the specified methods.
Mr Jones submits that contrary to Ms McWilliam’s submission, neither SZFOH nor Lee are authorities for the proposition that the Court may refuse to grant relief “in circumstances where any jurisdictional error could not have made a difference to the outcome”. In Lee, Besanko J considered the authorities on the question of utility and concluded that a forward-looking test must apply. In other words, the question for the Court is not whether there would have been a different outcome, but whether there could be a different outcome in the future. The mere fact that the applicant claims refugee status in relation to such a volatile place as Pakistan, and that nine years have passed since his claims were last assessed, should satisfy the Court that there would be no utility in ordering the case to be re-heard.
I am satisfied that s.441G(2) can only operate when the authorised recipient is notified. As the Tribunal was notified by telephone and subsequently given written notice, no authorised recipient appears to have existed after that notification on 1 August 2006. The second letter issued by the Tribunal on 1 August 2006 rectified the problem that arose because of this withdrawal. I have been unable to find any authority on this issue for guidance. However, if this reasoning is incorrect and the removal of an authorised recipient can only be initiated by the applicant’s notification (ignoring the problem in respect to the applicant failing to initiate this process), then the remaining consideration must focus on the question of utility and whether this Court should exercise its discretion to grant relief in the circumstances where jurisdictional error exists.
In Lee at [48]-[51], Besanko J considered the issue of discretion:
48 In my opinion, before a Court will exercise its discretion to refuse relief on the ground of futility, it must be quite clear that a rehearing or reconsideration is or will be futile.
49 I turn now to consider whether futility was made out in this case. A question arises as to the point in time at which the question of futility is to be assessed. As far as administrative decisions are concerned, there is little authority on the point. There is reference to a "backward-looking test" which requires futility to be assessed at the time the decision-maker made its decision. There is reference to a "forward-looking test" which requires futility to be assessed at a time in the future when the reconsideration or rehearing takes place. In many cases, it will not matter which test is applied because the same result will follow.
50 We were referred to a decision of this Court which has considered which test is appropriate, albeit in the context of a decision made by a Court in breach of the rules of procedural fairness. In Giretti v Commissioner of Taxation (1996) 70 FCR 151 Lindgren J (with whom Jenkinson J agreed) decided the case on the basis that there had been no failure to accord procedural fairness. As an alternative ground upon which the appeal should be dismissed, Lindgren J said that assuming a failure to accord procedural fairness, nevertheless, the appellant had not been deprived of even a possibility of a favourable result. Lindgren J favoured a backward-looking test. He said (at 165):
"No doubt in most cases, the application of the two tests will yield the same result. Perhaps the better view is that there is scope for the operation of both tests as alternatives in the sense that it is a ground for denying relief either that there was or that there is no possibility of a different result (cf the section heading in Woolf and Jowell, De Smith’s Judicial Review of Administrative Action (5th ed, 1995), p 498, ‘Where the defect of natural justice has made no difference to the result; where to require fairness or natural justice would be futile; where no prejudice has been caused to the applicant’ and discussion following). At least, it seems correct in principle that a backward-looking test should have scope to exclude relief. It is difficult to accept readily that a person who has been denied the benefit of procedural fairness should be entitled to be placed in a better position than if he or she had not been."
51 Merkel J favoured a forward-looking test and, in my respectful opinion, his reasons for doing so are highly persuasive, as are the points made by Bingham LJ in R v Chief Constable of Thames Valley Police; Ex parte Cotton [1990] IRLR 344 at 352 (see also T Bingham "Should Public Law Remedies be Discretionary?" (1991) Public Law 64 at 72-73). In my opinion, it is appropriate to apply a forward-looking test at least in the particular statutory context under consideration in this case. Through no fault of their own, the appellants have been deprived of procedural fairness (as prescribed by the Act) and the requirement that the first appellant be nominated by an approved standard business sponsor is a requirement which must be satisfied at the time of decision.
The applicant in this matter was assisted by a new migration agent who appeared before the Tribunal at its hearing of 28 August 2006. Only two grounds of review were identified in the amended application, one of which was not pursued at the final hearing. The only issue raised before this Court concerns notification of the applicant inviting him to appear at the reconstituted Tribunal hearing. The applicant was represented at the hearing before this Court by a competent legal practitioner who practices in this jurisdiction. Mr Jones did not raise any other issue in respect of jurisdictional error by the Tribunal member in the conduct of its hearing or decision-making process. If an alleged error or errors were identified and persuasive arguments submitted, this consideration would be considerably different. However, in the absence of any such allegation, the focus moves to the issues discussed by Besanko J in Lee which is reproduced at [39] above. In the absence of any identified error by the Tribunal, I do not believe that the applicant has been deprived of procedural fairness. In the circumstances, I believe this Court should exercise its discretion by refusing to grant relief. The request by the applicant’s solicitor to grant relief because nine years have passed since the applicant’s claim was last assessed and that Pakistan is a volatile place, is in effect requesting this Court to conduct a merits review. In the circumstances, the application should be dismissed.
Conclusion
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 25 July 2007
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