SZMTR v Minister for Immigration - [2009] FMCA 892

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMTR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 892

MIGRATION – Application to RRT – strict time limit running from notification of delegate’s decision – notification not addressed in applicant’s name – addressed to name in false passport – failure to comply with statutory requirement – whether prejudice to applicant – discretion to refuse relief not exercised – mandamus issued to Tribunal.

Australian Postal Corporation Act 1989 (Cth), s.32(1)(b)
Migration Act 1958 (Cth), ss.66, 66(1), 412(1)(b), 441A(4), 441G(1), 494B, 494B(4), 494D
Migration Regulations 1994 (Cth), regs.2.16(3), 4.31(2)(b)
Australia Post Terms and Conditions 2001, cl.7.2, Appendix 1

Chan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308
Minister for Immigration & Citizenship v SZKPQ (2008) 166 FCR 84
SZIZO v Minister for Immigration & Citizenship (2008) 172 FCR 152
SZKGF v Minister for Immigration & Citizenship [2008] FCAFC 84
Zhan v Minister for Immigration& Multicultural & Indigenous Affairs (2003) 128 FCR 469

Applicant:

SZMTR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2458 of 2008

Judgment of:

Smith FM

Hearing dates:

9 December 2008, 15 April 2009

Delivered at:

Sydney

Delivered on:

9 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Counsel for the First Respondent:

Mr G T Johnson

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

A writ of certiorari issue directed to the second respondent to quash the decision of the second respondent made on 5 September 2008 that it did not have jurisdiction in matter 0804521.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 22 June 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2458 of 2008

SZMTR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks a writ of mandamus to compel the Tribunal to exercise jurisdiction in relation to her application made to it on 18 July 2008, which sought merits review of a decision of a delegate made on 22 June 2006. The Tribunal decided on 5 September 2008 that it did not have jurisdiction, because time had expired under s.412(1)(b) of the Migration Act 1958 (Cth). This required that an application for review should “be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision”. Migration Regulation 4.31(2)(b) prescribed a period of 28 days commencing “on the day on which the applicant is notified of the decision to which the application relates”.
The applicant had arrived in Australia in March 2006, travelling on a passport of the People’s Republic of China issued in the name of ZH. On 21 April 2006, she lodged an application for a protection visa in the name of ML. In her visa application, she clearly claimed that ZH was not her name and that she had travelled on a “false passport (I was on the ‘black list’, so couldn’t get real one)”. She gave a current residential address, being a home unit in Ashfield, which was also her “current postal address in Australia”. She did not appoint an authorised recipient for correspondence.
The delegate made a decision on 22 June 2006, which reflected confused thinking about the applicant’s identity. The delegate said that “the documentary evidence provided by the applicant is not conclusive and hence, I am unable to make a definitive finding in relation to the applicant’s true identity. However, for the purposes of this assessment I find that she has used fraudulent documents to enter Australia …”. However, the delegate also said elsewhere in her decision that “the applicant held a valid passport, which was issued in the applicant’s name”, and framed her conclusion as: “I am not satisfied that Z,H is owed protection obligations … I refuse to grant Z,H a Protection (Class XA) visa”.
The letter communicating the delegate’s letter shows as its addressee “Ms Z…,H…”, with the applicant’s nominated address. The envelope in which it was enclosed is not in evidence, but it is reasonable to infer, and I find, that it probably replicated the addressee of the letter (cf. Minister for Immigration & Citizenship v SZKPQ (2008) 166 FCR 84 at [21] and [26]). That is, that the envelope was incorrectly addressed to Ms ZH, and not in the name of the person who was the applicant in the visa application, Ms ML.
The incorrect addressing of the notification letter and envelope now provides the first ground upon which the applicant submits that the prescribed time for applying to the Tribunal did not commence, so that her application to the Tribunal was not out of time (compare Zhan v Minister for Immigration& Multicultural & Indigenous Affairs (2003) 128 FCR 469). Other defects in the notification letter and its enclosures were also argued, but for reasons which follow I do not need to address those issues.
The addressee error concerns the requirement of s.66(1) that “when the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way”. Regulation 2.16(3) of the Migration Regulations 1994 (Cth) required that “the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act”. Section 494B contains requirements in relation to several ‘methods’ by which the Minister is to “give a document to a person”. The methods are giving by hand, handing to a person at their last residential or business address, transmission by electronic means, and:
Dispatch by prepaid post or by other prepaid means
(4)Another method consists of the Minister 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 Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
The Minister submits that neither s.66(1) nor s.494B(4) expressly require a notification given by post to carry on the envelope the name of an addressee, nor that this must be the name of the visa applicant. He submits that this should not be found to be a mandatory part of the procedure for a notification by that method.
However, I do not accept this submission. I accept that s.494B(4) does not in terms prescribe the appearance of the envelope in which the postal article is to be despatched. However, in my opinion, it must assume that normal practices in relation to the despatch and delivery to a person of a postal article will be observed. One of these is the inclusion of the name of an addressee on the envelope. No submission was made by the Minister that the presence of an addressee name on the face of a postal article is not the common, if not invariable, practice of despatch by post in Australia. An addressee name in the first line of the address also appears to be a mandatory requirement of the ‘correct addressing standards’ promulgated by Australia Post (see cl.7.2 and Appendix 1 of the Australia Post Terms and Conditions 2001 made pursuant to s.32(1)(b) of the Australian Postal Corporation Act 1989 (Cth)).
More significantly, in my opinion, s.66(1) itself carries a requirement that the notification should be addressed to a particular person, being the visa applicant or his or her recipient authorised under s.494D, in whatever mode is appropriate to the method of notification. This expressly appears from its words “to notify the applicant”. In circumstances where a visa applicant or authorised recipient is always a natural person with an identifying name, this clearly requires the notification to identify the person to whom it is addressed. In the case of a postal notification, in my opinion, it requires that the visa applicant or authorised recipient should be identified by his or her name on the envelope of the notification letter.
My opinion that a correct addressee name on the envelope was mandatory is supported by authority which I am bound to apply. In SZIZO v Minister for Immigration & Citizenship (2008) 172 FCR 152, the Tribunal sent an invitation to a hearing incorrectly addressed to a father and not to his daughter, who was the nominated recipient for correspondence concerning a review application by all the members of a family who lived at the same address. The letter was undoubtedly received and opened by a member of the family, since the daughter and other members of the family attended the scheduled hearing. However, the Court held that the failure correctly to address the invitation failed to comply with a procedure required by s.441G(1). This directed the Tribunal to give notices to “the authorised recipient, instead of the applicant”. The ‘method’ adopted by the Tribunal for the giving of notices, was the method provided under s.441A(4) of “dispatch by prepaid post or by other prepaid means”, which is in terms indistinguishable from s.494B(4).
Lander J, with whose reasons Moore and Marshall JJ agreed, said:
58If the Tribunal chooses to adopt the method in s.441G(1), it will have satisfied that subsection if the envelope in which the document is enclosed is addressed to the authorised recipient by name and residence: Minister for Immigration & Citizenship v SZKPQ (2008) 166 FCR 84.
…
60In this case, the applicant appointed an authorised recipient under s 441G. The notice under s 425A had to be given by one of the methods specified in s 441A: s 425A(2). The first respondent contended that, because notice was given in accordance with s 441A(4), s 425A(1) was complied with. In my opinion, that argument must be rejected. Compliance with s 441A in the giving of a document to a recipient does not discharge the Tribunal from other obligations it has under the Act. If an applicant has appointed an authorised recipient under s 441G, then any document that the Tribunal would otherwise have given to the applicant must be given to the authorised recipient in accordance with one of the methods of service under s 441A. That is simply what s 441G says.
…
63The first respondent also contended that there is no obligation under s 441A to address the document at all and, in those circumstances, it would be sufficient to give a notice simply to a person’s address. I would reject that argument. The purpose of s 441A is to ensure, as far as reasonably practicable, that any document that the Tribunal must give or wishes to give an applicant (or indeed any person) will come to the attention of that person. The purpose of the section is to ensure that the Tribunal adopts one of the methods in the section.
64Section 441A(4) does not contemplate that the Tribunal would send a letter to an address without indicating who is intended to be the recipient of the letter. Indeed, s 441A(1) and the heading to s 441A speak of giving a document to a person. Subsection (4) assumes that the letter will be addressed by indicating the person to whom it is sent and that person’s last known address for service or last residential address. The fact that the subsection does not mention that the recipient’s name and description should be included on the envelope is not surprising. It would be assumed by almost everyone that where one sends a document by post to another person the envelope in which the document is contained will indicate the person (or corporation perhaps) who is the intended recipient and that person’s residence. Such a construction is consistent with the relevant definition of “address” in the Macquarie Dictionary, “a direction as to name and residence inscribed on a letter, etc”.
65It was argued that by sending the document to the eldest daughter at the same address that the Tribunal had complied with s 441G because the document had been sent to her address. I reject that argument. The notice was addressed to the appellant husband. It may be assumed that the envelope was addressed in the same way. In my opinion, notwithstanding that the notice was sent to the authorised recipient’s address, it cannot be said that the Tribunal discharged its obligation under s 441G(1) and gave the notice to the authorised recipient instead of the appellant.
In my opinion, the same reasoning requires that the correct addressing to the name of the visa applicant or authorised recipient should be found to be a requirement of a notification letter under s.66(1).
The reasoning in SZIZO also requires me to find that this did not occur in the present case. The name of the visa applicant was clearly on the face of the visa application Ms ML, and not Ms ZH. It was clear from the refugee claims made by the applicant that she referred to the name ZH only as the name in a passport which was not issued in her name. I do not consider that the delegate’s notification letter can be characterised as being addressed to the visa applicant by the name of that person.
I accept that if a visa applicant indicates in the visa application that he or she has, or recognises, two or more names, then a notification can be addressed to only one of those names. However, in the present case the visa applicant claimed only to have one name, and clearly disclaimed the name in the passport as not being her name. The envelope therefore was incorrectly addressed in relation to a requirement of s.66(1).
Lander J considered the significance of a correctly given notification of a hearing appointment, and concluded at [90] that “any failure by the Tribunal to comply with s.441G will, if uncorrected before the hearing takes place or the decision made, mean that the Tribunal will have committed jurisdictional error”.
In the present case, strict compliance with notification requirements attaching to s.66(1) can be seen to be at least as important as compliance with the Tribunal’s notice requirements. A long line of cases concerning the s.66 requirements has emphasised this, pointing out that a visa applicant’s right to apply for merits review is governed by an inflexible and short time limit measured from the giving of a valid notification (cf. Chan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308 at [46]‑[56]). I consider that the same considerations as have been applied to other aspects of s.66 should lead to the classification of the requirement for the correct naming of the addressee as a mandatory condition upon the application of that time limit.
I therefore consider that the applicant has established that the Tribunal incorrectly held that it did not have jurisdiction, and that she has also established an entitlement to the issue of a writ of mandamus to compel the Tribunal to review the delegate’s decision.
The Minister did not submit that this relief should be refused by reason of the delay in the applicant making her application to the Tribunal on 18 July 2008. This is explained in evidence before me which it is unnecessary for me to detail. In short, the applicant was first assisted by an agent to lodge an application for review on 27 October 2006, which was ruled by the Tribunal to be ineligible on a calculation that time had expired on 31 July 2006 measured from the delegate’s notification letter. The agent claimed that she had posted the application on 21 July 2006 and that “no one knows what happened on her application. That’s really out of her control and she is not in fault”. However, in later submissions to the Minister, the applicant claimed that it was the agent’s fault that the first application for review was lodged out of time. The applicant’s correspondence with the Minister was protracted, before the applicant made her second attempt to invoke the Tribunal’s jurisdiction, leading to its present decision.
The Minister did, however, seek to build upon a statement by the applicant in a submission to the Minister received on 27 July 2007, which was repeated in later submissions:
On June 26, I received a letter from the Immigration Department, which rejected my asylum application. On the same day, I took the letter to the migration agent’s office. The agent told me that my asylum application was rejected and I had to lodge an appeal within 28 days. He asked me to sign a blank form and said they would take care of it.
The Minister submitted that this contained an admission that, in fact, the applicant had received the delegate’s notification letter four days after it was despatched, and therefore had suffered no prejudice from the incorrect addressing of the letter. It was submitted that I should refuse relief for this reason.
The applicant did not give any evidence to the Court about the circumstances in which her two applications to the Tribunal were made outside the prescribed time measured from the date of despatch of the notification letter. In this circumstance, and noting that the applicant has presented various versions of relevant events to the Minister and Tribunal, I have some difficulty drawing confident findings that she was not prejudiced by the incorrect addressing of the letter.
There is no evidence that the applicant had generally adopted ZH as an alias, nor that she would readily have recalled that ZH was the name in her false passport. The use of the name ZH in the first application to the Tribunal seems to arise from the incorrect addressing of the delegate’s letter, and suggests confusion on the part of the applicant’s agent, rather than the adoption of the alias by the applicant.
I would be slow to assume that she had the capacity to identify a Roman script reference to ZH when appearing on correspondence received at her address, and immediately to understand that the correspondence was intended to be addressed to her name. It seems quite possible that she was unable to read and comprehend the importance of the information in the notification letter as to time limits. It is conceivable that the delegate’s confusion of names may have contributed to some further confusion on the part of the applicant or her agent after receiving the notification letter, which may have delayed the actions of either or both of them.
In all these circumstances, I am not persuaded that the applicant’s conduct in relation to her previous use of the name ZH when travelling on a passport, nor her subsequent statements to the Minister and Tribunal when seeking to excuse the lateness of her applications for review, should provide reasons for declining to give relief. Even if I am not confident that the error made any difference to the applicant’s efforts to obtain a hearing by the Tribunal of her refugee claims, the fact is that she has not had the opportunity for merits review which, on my conclusions above, she was entitled by law to enjoy. The outcome of that merits review is entirely unpredictable.
I have therefore concluded that the discretion which has been addressed in many cases, including those identified in SZIZO (supra) at [94]‑[96], should not be exercised against the applicant. I note that the relevant circumstances in relation to discretion are significantly different to those in SZIZO, where the Tribunal had powers to overcome any defects in the procedures for hearing invitations, and where the applicants could not point to a lost opportunity for merits review. The outcome of the pending appeal in the High Court in SZIZO may therefore not be determinative of the present matter.

I do not consider that the failure of procedure in this case is analogous to the erroneous postcode on the letter in SZKGF v Minister for Immigration & Citizenship [2008] FCAFC 84 at [8], which the Court characterised as causing “no practical injustice”. I consider that the Full Court’s emphasis in SZIZO at [97] upon compliance with “imperative statutory obligations”, applies more strongly in the present case, where the application of a strict time limit is in question. In their Honour’s language, I do not consider that this is an “exceptional case” where the failure to comply with such an obligation should be disregarded by the Court.
I therefore consider that I should order the issue of the appropriate writs.

I certify that the preceding twenty‑seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 9 September 2009