SZKTM v Minister for Immigration - [2008] FMCA 215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKTM v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 215

MIGRATION – RRT decision – invitation to hearing – addressing of notification letter – letter addressed to applicant given in envelope addressed to authorised recipient – refusal of relief due to immaterial procedural defect – refusal of relief due to inadequately explained delay – application dismissed.

Migration Act 1958 (Cth), ss.415(2), 417, 425, 425(1), 425(2), 425A, 425A(2)(a), 425A(3), 426A, 426A(1), 426A(2), 441A, 441A(4), 441A(4)(c), 441G(1), 476(1)

Le v Minister for Immigration and Citizenship (2007) 157 FCR 321
Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181
Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572
Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20
Minister for Immigration & Citizenship v SZKPQ [2008] FCAFC 21
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZFIH v Minister for Immigration & Anor [2005] FMCA 1847
SZFOH v Minister for Immigration & Citizenship (2007) 159 FCR 199
SZHFW v Minister for Immigration & Multicultural Affairs [2006] FCA 480
SZHFW v Minister for Immigration [2006] FMCA 86
VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570

Applicant:

SZKTM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1840 of 2007

Judgment of:

Smith FM

Hearing date:

20 February 2008

Delivered at:

Sydney

Delivered on:

12 March 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S Sirtes

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1840 of 2007

SZKTM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant came to Australia in October 2002, and engaged a migration agent, Ms Zhang, to assist him to obtain a protection visa. His application was lodged with the Department of Immigration on 5 November 2002.
A brief statement claimed that he was a leader of a group of Falun Gong practitioners before Falun Gong was outlawed in 1999. At an unspecified later date, he was “put into an Education Centre for more than 3 months due to my refused to give up what I believed. And life in there was unbearable. … I am so lucky that I find a way to leave the country with some help in the end”. No supporting details or evidence of these events was ever shown to the Department or Tribunal.
The application was refused by a delegate on 6 December 2002, and Ms Zhang was authorised by the applicant to act on his behalf in an appeal to the Tribunal, and to receive all correspondence about his application.
On 26 November 2003, the Tribunal handed down a decision which affirmed the delegate’s decision. The Tribunal summarised its preceding contacts with the applicant and Ms Zhang in its statement of reasons:
On 15 September 2003 the Tribunal wrote to the Applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the Applicant to give oral evidence and present arguments at a hearing on 23 October 2003. The Applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. There was no response and on 8 October the Tribunal tried to contact the Applicant but the telephone number he provided did not answer. The Applicant’s adviser said that she too has been unable to contact him but that she would try again and respond to the hearing offer as soon as possible. Later that day the adviser told the Tribunal that she had located the Applicant in Melbourne and that he wanted to attend a hearing. The adviser said that she would be requesting a postponement for at least a day as she was out of town until after the scheduled hearing time. However, nothing was received about a postponement. The Tribunal again contacted the adviser’s office on 17 October and was told that the adviser was overseas until 24 October. The Tribunal again tried to contact the Applicant on the telephone number he provided but was told by the woman who answered that there was no‑one there by the Applicant’s name and that it must be the wrong number. On 27 October the Tribunal again contacted the adviser and was told that the Applicant was back in Sydney and wanted a hearing; written confirmation of this was received on 27 October 2003. On 28 October the hearing was re‑scheduled, by fax to the adviser and express post to the Applicant, for 30 October 2003. However although the adviser came to the Tribunal for the hearing the Applicant did not appear before the Tribunal on the day and at the time and place at which he was re‑scheduled to appear. As at the date of signing this decision nothing has been received from the Applicant or the adviser. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.
This narration is confirmed by other evidence before me, including the oral evidence of the applicant. I accept its accuracy, although it will be necessary to give some more details in relation to some of the events.
In its statement of reasons, the Tribunal pointed out that the applicant’s claims were “extremely vague and inconsistent”. It identified statements in his visa application which did not suggest that he was of adverse interest to the authorities for any reasons, when he left China. It concluded that it was not satisfied, on the evidence before it, that the applicant had a well‑founded fear of persecution within the meaning of the Convention.
On 12 June 2007 the applicant commenced his present proceeding in this Court, about 3½ years after the Tribunal announced its decision and reasons. He seeks orders setting aside the decision, and remitting the matter to the Tribunal for further consideration of his refugee claims.
I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. Even if such an error occurred, I have a discretion to refuse relief if “circumstances appear making it just that the remedy should be withheld” (R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400, cited recently in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [28]). The discretion arises, because the Court’s jurisdiction under s.476(1) of the Migration Act 1958 (Cth) is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”.
The applicant’s application and amended application contend that procedural jurisdictional errors occurred both in relation to the Tribunal’s letter which appointed a hearing on 23 October 2003, and in relation to its appointment of the rescheduled hearing on 30 October 2003.
Section 425(1) of 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”. There are exceptions to this in s.425(2), but they did not arise in the present matter.
Section 425A gives directions as to the content and timing of a notice of invitation to appear at a hearing. Under s.425A(2)(a) it “must be given to the applicant … by one of the methods specified in section 441A”. These methods include delivery by hand, post or fax. In relation to notifications by post, s.441A(4) is complied with by “an officer of the Tribunal, dating the document, and then dispatching it … (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”.
Where an applicant appoints an “authorised recipient” for documents, as occurred in the present matter, s.441G(1) requires that “the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant”. It has been held in the Full Court of the Federal Court that this has the effect that the notification requirements of s.425 and s.441A must be read as if their references to “the applicant” and “the recipient” were to the person who is the authorised recipient, and to his or her addresses. Moreover, they are not satisfied by an applicant receiving a correct notification, if his or her authorised recipient was not given one (see Le v Minister for Immigration and Citizenship (2007) 157 FCR 321 at [18]‑[29], Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181 at [38]‑[39]).
In VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 at [45], a Full Court held that the requirement that a document be “given” “involves, in the case of correspondence, the document being addressed to the person to whom it is to be given”. As a result, a notification letter which on its face was addressed to “Mr [visa applicant], C/O Ms [authorised recipient], [her address]”, and which commenced “Dear Mr [visa applicant]” was not “given” to the authorised recipient. It is unclear from the judgment in VEAN how the addressee of the letter in that case appeared on the envelope containing the letter, although the facts indicated at [38] of the judgment suggest that it probably replicated the addressee details as shown at the top of the letter. This was how the facts in VEAN were understood in Minister for Immigration & Citizenship v SZKPQ [2008] FCAFC 21 at [26].
In the present matter, the Tribunal’s invitation to the hearing on 23 October 2003 commenced:
Mr [applicant’s name]
C/- CWH M & E Business Service
T23 / 730‑742 George Street
SYDNEY NSW 2000
15 September 2003
Dear Mr [applicant’s name]
The business name was that of Ms Zhang’s “organisation” shown in the application for review, and the address was her address as given to the Tribunal in that document.
At the end of the letter was the following:
Sent to: Ms Shuang Zhang
CWH Migration Education Business Serv.
108 / 413‑415 Sussex Street
SYDNEY NSW 2000
cc: Applicant as addressed
[his home address shown on the application to the Tribunal]
There is an annotation on the Tribunal’s copy of the letter suggesting that the letter was posted by registered post in an envelope addressed to Ms Zhang at the Sussex Street address. This inference is supported by the Tribunal’s registered post records for 15 September 2003, and I find that it probably was so dispatched. Although this address was not her address given to the Tribunal in the application for review, I would infer that it was an address which she subsequently gave the Tribunal as her “last business address in connection” with the applicant’s review and all other matters in which she was then representing applicants in the Tribunal. This is confirmed by the fact that a Tribunal officer has made a file note on 2 September 2003 that “the adviser has changed her address. Email sent to K.Kilby to update adviser’s address in the RRT database”. Furthermore, there is no doubt that the adviser in fact received the envelope which was sent to her at Sussex Street, since she confirmed its receipt in conversation with Tribunal officers.
There is no evidence confirming that a copy of this letter was also posted in an envelope addressed to the applicant at his stated home address. In his oral evidence he said that, in fact, he never lived at that address, but that it was the address of a cousin’s girlfriend’s friend. The possibility that the letter might not actually have reached the applicant is confirmed by the fact that a later letter sent in an envelope addressed to him at that address, notifying him of the rescheduled hearing, was returned to the Tribunal marked “unknown at address”. However, as the cases which I have cited above explain, the provisions of the Migration Act which allow – and require – notifications to be given by dispatch to an authorised recipient are designed “to eliminate uncertainty as to whether a document has been given to an applicant” (see Le (supra) at [25]).
The first issue which arises from my above findings in relation to the Tribunal’s notice of invitation to appear at a hearing, is whether it was “given” to Ms Zhang according to the formalities required by s.425A, notwithstanding that she was not the addressee at the top of the letter, but because the letter was posted to her in an envelope which identified her as the addressee.
The reasons of Besanko J, with which Moore J agreed, in SZFOH v Minister for Immigration & Citizenship (2007) 159 FCR 199 at [29] appear to hold that it would be insufficient for the envelope containing a notification to be correctly addressed and sent to an authorised recipient, if the enclosed letter itself showed an incorrect addressee. He said:
28I would not be prepared to find that the invitation was given to the authorised recipient as required by the Act. For the reasons I gave in Lee [2007] FCAFC 62, the authorised recipient must be served by one of the methods specified in s 441A of the Act. I am not prepared to infer from the Tribunal’s comments set out in [14] above that the invitation to appear was sent to the authorised recipient at an address provided to the Tribunal.
29There is in any event a further problem. The letter itself is addressed to the appellant at his residential address. It is not addressed to the authorised recipient and, on the authority of VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570, that means the document has not been given to the authorised recipient. Even if it is appropriate to infer that the envelope containing the letter was addressed to the authorised recipient (a matter I doubt) I do not think that overcomes the problem.
However, another Full Court has recently declined to follow this opinion (see Minister for Immigration & Citizenship v SZKPQ [2008] FCAFC 21 at [26]). In that case, it was held at [21]‑[22] that an obligation to “give” a notification to an authorised recipient would be satisfied by the notification being sent to that person in an envelope addressed to him or her. It was held that no defect in procedure occurred because the enclosed notification was addressed to the applicant, with a “cc” to the authorised recipient.
I consider that I should follow the most recent judgment of the Full Court, and therefore find that the present notice of invitation complied with formalities required under s.425A.
However, given the differing opinions in the Federal Court, I have also considered the circumstances in this case, upon the assumption that the opinions in VEAN and SZFOH might be preferred in future judgments of the High Court or Full Court.
In my opinion, the defect in the addressing of the notification letter which was found in SZFOH does not necessarily mean that I must find that “jurisdictional error” affected the proceedings of the present Tribunal, in the sense that it vitiated the Tribunal’s ultimate decision. Nor does it necessarily require the Court’s discretion to favour quashing the decision.
As I explained in SZFIH v Minister for Immigration & Anor [2005] FMCA 1847 at [36] and following, a decision on whether there are jurisdictional consequences from a failure to observe a procedural formality in relation to an invitation to a Tribunal hearing requires consideration of the intention of the legislation as to the consequences of a procedural irregularity, according to the principles explained in the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. I concluded in that case that there were some circumstances in which a failure to observe a formality in relation to a hearing invitation could not have been intended to result in the invalidity of a Tribunal’s subsequent procedures and decision. Such circumstances would include where the applicant waived a notification requirement by attending a scheduled hearing upon reasonable notice and without objection. My reasoning in SZFIH in relation to rescheduled hearings was not addressed by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572 at [76] and following, since their Honours held that the invitation formalities did not apply to any invitation to a rescheduled hearing. However, in my opinion, it may also be applied in relation to departures from formal requirements as to the addressing of notifications, where the departure can be found to have caused no adverse consequence to an applicant whatsoever.
In particular, I do not accept that the legislation intended the Tribunal’s decision to be vitiated because of a formal defect on the face of a hearing invitation letter, when the invitation was correctly addressed on the envelope, and was received, comprehended, and acted upon by an authorised recipient. I consider that all Full Court authorities leave such a conclusion open to me (see Le (supra) at [31], and SZFOH (supra) at [26]). As I shall explain, this was the situation which occurred in the present case.
Alternatively, if the procedural defect in the present case should be found to be one which the legislation intended to carry jurisdictional consequences in all cases, I would exercise my discretion to refuse relief in the circumstances of the present case, since, as I shall explain, the defect had no consequences affecting the ability of the applicant and Ms Zhang to understand and act upon the hearing invitation, and had no effect on the outcome of the Tribunal’s review.
I find, from the notes on the Tribunal’s file and from the applicant’s evidence to the Court, that Ms Zhang in fact received the hearing invitation, and understood its effect. She communicated the hearing invitation to the applicant, who had gone to Melbourne. She then, on his instructions, on 8 October 2003 told the Tribunal that he wanted to attend a hearing, and requested a rescheduling of the hearing appointed for 23 October 2003 to accommodate his and her travel arrangements. This request was repeated on Monday 27 October 2003, and was accepted. A Tribunal officer’s note records that he or she: “told her that I shall check with member and inform her about hearing details. After checking with member I phoned and told her that member wants to do it by the end of this week. She said it is ok”. The Tribunal then sent a fax to Ms Zhang on 28 October 2003, which advised that the rescheduled hearing would he held at 9.30 am on Thursday 30 October 2003. There is no evidence that Ms Zhang made any suggestion that this was in any way inconvenient to her or to the applicant, either before, during or after that hearing. I find that she accepted, on behalf of the applicant, that this appointment would sufficiently afford the applicant the opportunity required under s.425 of the Migration Act.
The applicant gave evidence to the Court that he was made aware by Ms Zhang of the original hearing invitation and requested her to arrange a rescheduled hearing. This evidence was given without significant inconsistency. His evidence concerning his knowledge of the subsequently rescheduled hearing was problematic, and it was necessary to recall him to the witness box to clarify further unsworn statements he made during submissions. He then gave clear evidence, which I accept, that he held further phone conversations with Ms Zhang after returning from Melbourne. In these, he was informed of the time appointed for the rescheduled hearing which he had requested, and they discussed whether he should attend. He told the Court that “she told me to go to the hearing and also she suggested that even though I went there there was no use. There’s no point in going there”. He decided not to attend, turned off his mobile phone so that the Tribunal could not contact him on that day, and did not contact the Tribunal to explain his absence. As the Tribunal records, Ms Zhang did “come to the Tribunal for the hearing”, but it appears that she communicated nothing to the Tribunal as to her discussions with the applicant.

In these circumstances, I consider that any formal defect as to the addressee shown on the original invitation letter in the envelope sent to Ms Zhang made no difference to the procedures followed by the Tribunal. It did not affect in any way the enjoyment by the applicant of his opportunity to attend a hearing required to be afforded to him under s.425 of the Migration Act, and “could not have affected the outcome” of the Tribunal’s review (cf. SZBYR (supra) at [29], and [73], and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [58], and [104], cited by Kirby J in SZBYR (supra) at [52]‑[59]). In my opinion, this circumstance calls for the exercise of the discretion now to refuse any relief which might have been available by reason of the defect in the Tribunal’s letter.
I therefore would hold that, if error occurred in relation to the notification of the first scheduled hearing, the applicant is not entitled to relief, or relief should be refused. As I shall indicate, I also consider that the applicant’s unwarranted delay in approaching the Court provides another, independent, reason for refusing relief.
The grounds in the applicant’s amended application also challenge the Tribunal’s appointment of the rescheduled hearing, and its decision not to offer any further rescheduled hearing. Three contentions appear to be made.
The first is that the letter appointing the rescheduled hearing failed to provide the period of notice required under s.425A(3). However, it has been held in SZFML at [64] that this provision, and the other formalities required of a notice of invitation to appear, do not apply to the Tribunal’s appointment of a rescheduled hearing at the request of an applicant. Their Honours held at [82]: “provided the notice of the rescheduling is reasonable there is no requirement, applicable to that procedure, for the application of the minimum prescribed period applicable to the notice required by s.425A”.
Although the Tribunal referred to s.426A of the Migration Act when explaining its decision to proceed to make a decision after the applicant failed to attend the rescheduled hearing, on the analysis taken in SZFML it did not, in fact, exercise the power conferred by s.426A(1) to make a decision upon an applicant’s failure to attend a hearing appointed in a notice of invitation under s.425A. Rather, the Tribunal agreed to the applicant’s request, made through Ms Zhang, not to make such a decision, and, instead to afford him under s.426A(2) a further opportunity to attend a rescheduled hearing. It then decided that its obligations under s.425(1) had been discharged, and that it should proceed to conclude its review by making a decision under s.415(2). I n find no defect in relation to this procedure.
The applicant also challenges the appointment of the rescheduled hearing on the basis that the applicant “may not have received” notice of it, and that reasonable notice was not afforded to the applicant. However, on my findings above, the applicant was fully aware of the rescheduled hearing. Through his agent, he agreed to its appointment on short notice. In these circumstances, I am not persuaded that he was given unreasonably short notice of the rescheduled hearing.
A third allegation which appears in the amended application, is that the Tribunal proceeded upon a mistaken belief that the applicant had, through his agent, consented to it making a decision without rescheduling a further appointment, as occurred in SZFML. However, there is no evidence that the Tribunal proceeded on that basis, nor that its ultimate decision was arrived at upon a “false premise” (cf. SZFML at [65]). On the evidence before me, I find that it did not.
The applicant’s affidavit in support of his application contains an unparticularised allegation that “there has been fraud by migration agent”. However, no evidence has been presented by the applicant which causes me to make findings such as were identified in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35. I am not even persuaded that the applicant’s absence from the rescheduled hearing is attributable to “bad or negligent advice” from Ms Zhang (cf. SZFDE at [53]). I have doubt whether, in fact, she did advise him to absent himself, since the applicant’s evidence concerning this conversation was attended by inconsistencies and other defects in his testimony. It would also seem to be inconsistent that she, in fact, did attend the hearing herself. Moreover, even if she did advise him not to attend, on the evidence before me, this could have reflected a proper understanding of the true merits of his refugee claims, and could have been astute advice designed to extract as much delay from the Tribunal’s processes as possible. In the absence of a full examination of the agent’s conduct, including a thorough attempt to present to the Court her records and testimony, I am unable to arrive at any conclusions attributing serious fault to any advice given to the applicant by Ms Zhang.
For the above reasons, I am unable to identify any jurisdictional error affecting the appointment or conduct by the Tribunal of the rescheduled hearing on 30 October 2003, or the Tribunal’s decision to then proceed to finalise its review.
As I indicated above, the Minister contended that if any jurisdictional error were found, the Court should refuse relief on the ground of the applicant’s unwarranted delay when allowing 3½ years to elapse before he applied to set aside the Tribunal’s decision. Such a ground for refusing relief is well established (see my discussion of the authorities in SZHFW v Minister for Immigration [2006] FMCA 86 at [49]‑[53], upheld by Madgwick J in SZHFW v Minister for Immigration & Multicultural Affairs [2006] FCA 480). The Full Court has recently confirmed that a failure to adequately explain a long delay may provide grounds for declining relief (see Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20).
The applicant was given a full opportunity at the hearing before me to present evidence explaining his delay.
The Minister led evidence that, soon after the Tribunal handed down its decision on 26 November 2003, a request was received by the Minister for a discretionary decision under s.417 of the Migration Act. This gave Ms Zhang’s address as the applicant’s, and purported to be signed by him. It was refused by letter from the Department of Immigration dated 14 September 2004, which appears to have been sent to Ms Zhang’s old address. However, the applicant denied that the letter carried his signature, denied that he was aware of its contents, and denied that he was aware of the Department’s response.
The applicant’s evidence to the Court was that he spoke to Ms Zhang soon after the Tribunal had made its decision. She told him that she would write to the Minister, and in a later conversation she told him that she had written a letter. He then had no further contact with Ms Zhang. He made no inquiry to her, nor to the Department of Immigration, to discover the outcome of the letter to the Minister, or to discover whether he had avenues for appeal. He did nothing to get advice on how to legalise his immigration status during 2004, 2005 or 2006. In 2007 a friend told him that he could commence an appeal in this Court, and assisted him to obtain documents from the Tribunal. He explained his delay over these years only on the basis that he felt hopeless and did not know what to do.
In my opinion, the applicant’s explanation for his inaction does not provide an acceptable explanation for the very substantial delay in commencing a challenge to the legality of the Tribunal’s decision. Even giving reasonable allowance to cultural and language difficulties facing the applicant, he was living in a city where there are abundant sources of advice to refugee claimants such as the applicant, and where it is this Court’s experience that most persons of his background have no difficulty discovering their rights of appeal. I can account for the applicant’s delay only on the basis that he made a conscious decision over several years not to attempt any investigation into the Tribunal’s decision and of his rights of appeal. In my opinion, on the evidence presented to me, and taking into account all the considerations pointed to in the authorities cited in SZHFW and by the Full Court in SZIQB, his delay was unwarranted and should cause the Court to refuse relief in this case.
For all the above reasons, I consider that the application should be dismissed.

I certify that the preceding forty‑two (42) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 12 March 2008