SZNJM v Minister for Immigration and Citizenship
[2009] FCA 1295
•13 NOVEMBER 2009
FEDERAL COURT OF AUSTRALIA
SZNJM v Minister for Immigration and Citizenship [2009] FCA 1295
SZNJM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 733 of 2009
SIOPIS J
13 NOVEMBER 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 733 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNJM
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
13 NOVEMBER 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 733 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNJM
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE:
13 NOVEMBER 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of India who arrived in Australia on 10 August 2008. On 9 September 2008, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.
In his application for a protection visa, the appellant claimed to be a Sikh from the Punjab who feared persecution from his political rivals, claiming that they would kill him if he were to return to India. The appellant claimed that he became a big contributor to the local Bharatiyo Janata Party fund. Due to this affiliation, he was targeted by members of the Gujjar Party who came to his restaurant, threatened him and beat him badly. He claimed that he was hospitalised. He later told the police, who, although they said they would help him, were politically biased and did nothing. The appellant said his house was also attacked, and he became suicidal. He subsequently came to Australia on a visitor’s visa.
The delegate of the Minister for Immigration and Citizenship dismissed the appellant’s visa application. The appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision. The Tribunal invited the appellant to attend a hearing, but the appellant failed to attend the hearing. The Tribunal dismissed the appellant’s application for a review. The appellant sought judicial review of the Tribunal’s decision. The Federal Magistrate dismissed the appellant’s application for judicial review. The appellant appealed to this Court.
The only issue in this appeal is whether the Tribunal gave the appellant notice of the hearing in accordance with the provisions of s 441A(4) of the Migration Act 1958 (Cth) (the Act). It is the appellant’s contention that the Tribunal failed to do so, and therefore, failed to comply with s 425 of the Act; and that the Federal Magistrate erred in failing so to find.
BACKGROUND
The relevant events leading up to the Tribunal’s hearing are usefully set out by the Federal Magistrate at [4]‑[11] of his decision:
The Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision on 2nd January 2009. In that application, he nominated his home address as his address for correspondence.
On that same date, the Applicant delivered some other documents to the Tribunal. Those documents were:
·A statement about his refugee claim
·The delegate’s notification of refusal of his application for a Protection (Class XA) visa
·A form headed “Change of Contact Details”.
In this document, the Applicant’s name and existing home address (albeit with a slight spelling error) were written in the section marked “New residential address”. In addition, the Applicant’s name and a Post Office box number were written in the space marked “New postal address”.
The Tribunal wrote to the Applicant that same day, acknowledging receipt of his application. The letter was addressed to the Post Office Box.
On 2nd February 2009 the Tribunal wrote to the Applicant, inviting him to attend a hearing on 3rd March 2009. That letter, too, was addressed to the Applicant’s Post Office Box.
The Applicant did not attend the hearing on 3rd March 2009. The Tribunal decided the matter in his absence, using its power under s.426A of the Migration Act.
The Applicant wrote to the Tribunal dated 6th March 2009. The letter was received by the Tribunal on 9th March 2009.
In that letter, the Applicant said:
This is for your kind information that, I was invited to attend a hearing on 3 March 2009 to give oral evidence and present arguments before the tribunal. I use a PO box address for my postal correspondences and I missed to pick the registered mail on time and hence unable to attend the hearing on the schedule date.
Please consider my situation and allow me to attend the hearing by giving me a new hearing date. Please provide me with a second chance so that I can present in front of you and give my evidences in person.
I assure this time I will check my post office box everyday.
(Original emphasis. Footnotes omitted.)
On 25 March 2009, the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. In his further amended application dated 10 June 2009, the appellant relied upon two grounds of review. The first ground of review is no longer relevant.
The second ground of review claimed as follows:
1.…
2.The Tribunal failed to comply with section 425, and thus failed to comply with a mandatory provision of the Act, and failed to accord the Applicant procedural fairness, in failing to invite the Applicant to a hearing.
Section 441A(4) of the Act provides as follows:
Dispatch by prepaid post or by other prepaid means
(4)Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c)to:
(i)the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii)the last residential or business address provided to the Tribunal by the recipient in connection with the review.
The appellant gave evidence before the Federal Magistrate. It is not in dispute that the appellant handed into the Tribunal the two relevant documents in this case – namely, the Application for Review form and the Change of Contact Details form – at the same time. Each of these documents is dated 2 January 2009 and is signed by the appellant.
Section D of the Application for Review asks the question: “Where do you want us to send correspondence about your application?” The appellant ticked a box which was adjacent to the following wording: “To me at my address (If you mark this box all correspondence will be sent ONLY to your address provided below)”.
The “address below” which the appellant provided was his residential address.
The Change of Contact Details form contained two boxes immediately above that part of the form which provided space for the entry of a new residential address and a new postal address. Adjacent to one box, were the words: “My new contact details are provided below”; and adjacent to the other box, as an alternative, were the words: “There is no change to my contact details”. The appellant did not tick either of the boxes. However, as previously mentioned, he nevertheless completed the part of the form immediately below, which called for the “New residential address” and “New postal address”.
The Federal Magistrate found that the Tribunal had given notice of the hearing in compliance with s 441A of the Act. This was because the Tribunal had sent the notice of the hearing to the last address for service provided to the Tribunal by the appellant in connection with the Tribunal’s review in accordance with s 441A(4)(c)(i) of the Act.
The Federal Magistrate found that it was a logical inference that the Change of Contact Details form must be seen as the later document, because it was said to be a change to contact details already provided, the only contact details provided were those in the Application for Review, and it provided a new postal address that did not appear in the other document.
The Federal Magistrate went on to observe that “moreover” it was clear from the appellant’s letter to the Tribunal dated 6 March 2009 that it was his intention to use the post office box number as his address for correspondence with the Tribunal.
The Federal Magistrate observed that the fact that the appellant failed to clear the post office box in time did not affect the validity of the Tribunal’s actions.
THE APPEAL
The appellant filed a notice of appeal, in the following terms:
1.The Court erred in finding that the Tribunal invited the Appellant to a hearing in a manner that complied with section 425, and thus accorded the Appellant procedural fairness.
Particulars.
His Honour should have found that the Tribunal did not serve the invitation to attend a hearing in compliance with section 441A, because it sent the invitation letter by prepaid post neither to;
(i)the last address for service provided to the Tribunal by the recipient in connection with the review, there having been no specific request that documents be served at the post office box provided (RD78);
or
(ii)the last residential or business address provided to the Tribunal, that being the Arcadia address.
The appellant submitted that s 441A(4) should be construed strictly against the Tribunal, because it has the effect of treating documents which are determinative of rights as having been served and received even when, in actual fact, they have not.
The appellant then went on to contend that the question of which of the addresses provided by the appellant complied with s 441A(4)(c)(i) of the Act had to be determined objectively. This required an examination of both of the relevant forms as a whole.
The appellant went on to contend that it was illogical to regard the Change of Contact Details form as having been provided after the Application for Review form when the evidence was that both of the forms were submitted at the same time. The appellant submitted that an objective examination of both the forms when considered as a whole, showed that the only evidence of a clear and unambiguous intention expressed by the appellant as to the address for the purposes of service under the Act, was that indicated in the Application for Review form by the ticking of the box which indicated that the appellant wanted the Tribunal to send the correspondence to his residential address. The appellant contended that the provision of the postal address given in the Change of Contact Details form was no more than a facilitative act by the appellant, giving the Tribunal an alternative address at which to contact the appellant, and was not to be construed as varying the instruction contained in the Application for Review form as to where correspondence should be directed.
Further, the appellant contended that the Federal Magistrate erred by having regard to the appellant’s letter to the Tribunal of 6 March 2009. This was because the letter provided evidence of the appellant’s subjective intention in completing the form. Evidence of the appellant’s subjective intention, was irrelevant to the determination of this case, said the appellant. The question of whether the appellant had provided the postal address as his “last address for service” had to be determined objectively.
For the following reasons, the appellant’s appeal is dismissed.
First, the appeal does not turn on a dispute as to the construction of s 441A(4) of the Act as such. It turns upon the inference to be drawn from the conduct of the appellant in submitting the Change of Contact Details form as well as the Application for Review form to the Tribunal at the same time. In this regard, I observe that there was no issue between the parties as to the construction of s 441A(4). That section refers to an “address for service”. Both parties proceeded on the basis, correctly in my view, that the words meant no more than the address given by an applicant for review to which the Tribunal was to post documents which related to the applicant’s review.
Secondly, I accept the appellant’s contention that the intention of the appellant in completing the Application for Review form and the Change of Contact Details form and submitting them at the same time to the Tribunal, must be assessed objectively. In my view, applying an objective criterion to the appellant’s action, the inference to be drawn is that the appellant intended that his action in providing a Change of Contact Details form was to have an effect. In order to give meaning to the title of that form and to the fact that the form contained a new postal address which the founding form, namely, the Application for Review form, did not, the inference to be drawn from the appellant’s conduct is that the appellant intended that the Tribunal use the postal address which he provided, to communicate with him. In my view, by submitting the completed Change of Contact Details form the appellant’s intention was to vary the information contained in the founding form. Accordingly, the postal address was the “last address for service” within the meaning of s 441A(4)(c) provided by the appellant to the Tribunal in connection with the review.
It follows that I find that the Federal Magistrate did not err in the findings which he made.
The appeal is dismissed with costs.
I certify that the preceding twenty‑six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 13 November 2009
Counsel for the Appellant: Mr C Jackson Solicitor for the Appellant: Kazi & Associates Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: DLA Phillips Fox
Date of Hearing: 9 November 2009 Date of Judgment: 13 November 2009
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