SZNZP v Minister for Immigration
[2010] FMCA 423
•22 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNZP v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 423 |
| MIGRATION – Review of decision of Refugee Review Tribunal – application for extension of time – whether Tribunal complied with s.425 – whether Tribunal properly notified applicant of hearing – applicant submitted departmental form to Tribunal – whether applicant “elected” not to receive correspondence by facsimile – Tribunal complied with s.441A(5) – applicant properly notified of hearing – Tribunal entitled to proceed pursuant to s.426A – no merits of substantive application – consideration of interests of administration of justice – discretion not exercised – application not competent – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 411, 412, 414, 425, 426A, 441A, 476, 477 |
| SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 |
| Applicant: | SZNZP |
| First Respondent: | Minister for Immigration & Citizenship |
| Second Respondent: | Refugee Review Tribunal |
| File Number: | SYG 2600 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 30 March 2010 |
| Date of Last Submission: | 30 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 27 October 2009, and as further amended on 30 March 2010, is dismissed as not competent.
The applicant pay the first respondent’s costs set in the amount of $10,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYG 2600 of 2009
| SZNZP |
Applicant
And
| Minister for Immigration & Citizenship |
First Respondent
| Refugee Review Tribunal |
Second Respondent
REASONS FOR JUDGMENT
Background
On 27 October 2009 the applicant, with the assistance of solicitors, filed in this Court an application made under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 17 September 2009, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.
Hearing Before the Court
At the hearing of this matter Mr J R Young of counsel appeared for the applicant. Ms R Francois of counsel appeared for the first respondent.
The relevant provisions of s.477 of the Act are important to these proceedings:
“Time limits on applications to the Federal Magistrates Court
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
‘date of the migration decision’ means:
…
(b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or
…
…
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”
The emergence of the applicant’s case before the Court and the issues ultimately for the Court’s consideration require some exposition:
1)The application made on 27 October 2009 was filed on the applicant’s behalf by a firm of solicitors (Simon Diab & Associates). It was said to have been made pursuant to s.476 of the Act and sought review of the Tribunal decision.
2)It was presented to the Court’s Registry by facsimile communication at “13:32” on “26/10/2009”.
3)The application was accompanied by the affidavit of Simon Diab, solicitor, made on 26 October 2009, which annexed the Tribunal’s decision.
4)The Tribunal’s decision was made on 17 September 2009.
5)Section 477(1) of the Act, which became operational on 15 March 2009, and therefore applies to the circumstances of this case, imposes a 35 day time limit for the making of applications to this Court under s.476. This is to be calculated from the date of the Tribunal’s decision. In this case, therefore, 17 September 2009.
6)This means that to comply with s.477(1), the application needed to have been made on or before 22 October 2009. It was not.
7)While the application acknowledged the date of the Tribunal’s decision, no application for an extension of time under s.477(2) was made.
8)By facsimile transmission on “28/10/2009” at “15:06” the applicant’s solicitors presented another application to the Court’s registry which also purported to be an original application. This documentation, however, also included an application for an extension of time.
9)Although those applications were clearly sent on 28 October 2009, the Registry has “stamped” the applications as being “filed” or “presented” on 27 October 2009.
10)On 10 November 2009 the applicant’s affidavit of 9 November 2009 was filed. It was directed to the matter of when the applicant first became aware of the Tribunal’s decision.
11)Also filed on 10 November 2009 was the affidavit of Samir Shiba, a solicitor employed by the applicant’s solicitors. It was directed to the matter of the timing and making of the application to this Court. It contained references to advice given and exchanges with the applicant.
12)The affidavit makes reference to three annexures. Annexure “C” as referred to in paragraph 10 was not annexed.
13)There is nothing in the documentation presented to show that the applicant waived his legal professional privilege. It can only be assumed that solicitors relevantly advised their client and that the applicant’s privilege was waived.
14)On 26 November 2009 solicitors representing the applicant and the first respondent appeared at the First Court Date.
15)On that day Lloyd-Jones FM made orders for the conduct of the case. Relevantly:
a) The first respondent was to file and serve a bundle of relevant documents (the Court Book – “CB”) by 11 January 2010 (Order 2).
b) The applicant was to file any amended application by 1 February 2010 (Order 3).
c) The matter was set down for final hearing on 25 March 2010 (Orders 1 and 7).
d) The applicant was to file a short written outline of submissions 14 days before the hearing (Order 9).
e) The respondent was to do the same 7 days before the hearing (Order 10).
16)I note the following subsequent action:
a) The Court Book was filed on 3 December 2009.
b) No amended application was filed by the applicant by 1 February 2010. Nor were any written submissions filed within time by the applicant. Nor, consequently, within time by the respondent.
17)Subsequently on 3 March 2010 the matter was transferred to my docket. The matter was listed for final hearing on 30 March 2010.
On 25 March 2010 the applicant filed written submissions which foreshadowed seeking leave to file in Court an amended application which was attached to the submissions. That application was silent on the issue of any application for an extension of time pursuant to s.477(2). The Minister’s written submissions filed on 25 March 2010 were silent on the Minister’s position on the issue of any extension of time.
It is of concern in matters of this type, where an applicant is represented by a firm of solicitors, that the omissions, delay, and confusion as outlined above should occur. I draw a clear distinction between cases involving unrepresented applicants who are seeking to complain about an adverse refugee decision and those where solicitors are involved from the outset. At the very least, if solicitors are unable to meet the timetable set by the Court at the First Court Date, if for no other reason than as a matter of courtesy to the Court, they should seek some further extension of the time limit set in the Court’s orders.
Ultimately, the following emerged:
1)The “second” application filed some hours after the first on 27 October 2009, which also contained an application for an extension of time, was taken as the application for such an extension which met the relevant requirements of s.477(2)(a).
2)Leave was granted in Court for a further amended application to be made.
3)Leave was granted for the applicant’s affidavit of 9 November 2009 to be read into evidence. No objection was taken. The applicant was not required for cross examination.
4)Leave was granted to read the affidavit of Samir Shiba into evidence, but for paragraphs which made reference to an “Annexure C”, which was not in fact annexed. No objection was taken. Mr Shiba was not required for cross examination.
Ultimately, therefore, there were two applications before the Court.
Further Amended Application
The first was a further amended application made pursuant to s.476 of the Act asserting jurisdictional error in the Tribunal’s decision. It is in the following terms:
“1. Contrary to Section 425 of the Migration Act 1958, the Refugee Review Tribunal made a decision affirming the decision not to grant the applicant a Protection visa without first inviting the applicant to appear before the Tribunal.
1A. The Second Respondent made je in that it erred as to its jurisdiction in its application of Section 426A of the Act.
1B. The Second Respondent made je in that it failed to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review and/or the Second Respondent made jurisdictional error in that it did not give the applicant notice of the day on which, and the time and place at which, the applicant was scheduled to appear by one of the methods specified in s441A of the Act.
2. Contrary to Section 424 of the Migration Act 1958, the Refugee Review Tribunal failed to review the decision to not grant a Protection Visa.
Particulars
The Tribunal failed to make findings in relation to substantive allegations made by the applicant.”
Application for an Extension of Time
The second is an application made under s.477(2) seeking to extend the time under s.477(1) by which such an application can be made to this Court.
Section 477(1) of the Act provides for a time limit to be imposed on the making of such applications. The application before the Court must be made within 35 days of the date of the Tribunal’s decision. It was not. It was made out of time. The Court is unable to grant the remedies sought in the application in these circumstances.
However, s.477(2) provides for the extension of this 35 day period where an application for such an order has been made in writing to the Court, specifying why the applicant considers it necessary in the interests of the administration of justice for the Court to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to make this order.
The threshold issue before the Court therefore is the competence of the applicant’s substantive application.
The Tribunal’s power to make its decision is derived from s.415 of the Act. The Court, pursuant to s.476, has the same original jurisdiction as the High Court under s.75(v) of the Constitution. But because of s.477(1), an application to this Court for a remedy in exercise of that jurisdiction must be made within 35 days of the date of the Tribunal’s decision.
The current versions of s.477(1) and s.477(2) were enacted by the Migration Legislation Amendment Act (No 1) 2009 (Cth), which became operational on 15 March 2009 (Migration Legislation Amendment Act (No. 1) 2009 Proclamation (13/03/2009), Legislative Instrument - F2009L01026). This amendment to the Act applies to applications made to this Court on or after that date. (See cl.7 of Schedule 2.)
The Tribunal’s decision was made on 17 September 2009. The application to the Court was made on 27 October 2009. It was made at least five days after the 35 day limit specified in s.477(1). There is no dispute between the parties that that is the case. There is no discretion under s.477(1) to extend that time, even for so short a period.
Such discretion does exist under s.477(2). The Court may extend the time if:
1)An application for an order to extend the time has been made in writing to the Court, specifying why the applicant considers that it is in the interests of the administration of justice to make the order.
2)The Court is satisfied that it is in the interest of the administration of justice to do so.
In relation to the first limb, the applicant has made an application in writing for an order to extend the time for the making of the substantive application. However, on its face, that application does not specify why the applicant considers it necessary in the interests of the administration of justice to extend the relevant time.
On its face, therefore, it would appear that the first limb in s.477(2) was not met. However, this point was not taken by the Minister. Ultimately, as the matter was not disputed before me, I was persuaded by Mr Young that the affidavit filed by the applicant when read with what is asserted in the substantive application amounts to sufficient specification for the purposes of s.477(2)(a).
The issue then for the Court is whether s.477(2)(b) can be satisfied. That is, that it is in the interests of the administration of justice that the time be extended
There are a number of circumstances relevant to the second limb in s.477(2). These are:
1)The extent of the delay and the reason for the delay.
2)Whether there is any merit in the substantive application.
3)Whether there is any prejudice to the respondents.
4)The impact on the applicant.
5)The interests of the public at large.
6)The Court’s discretion itself.
Delay
Mr Young asked the Court to take into account that the actual period of delay was very short. Further, that the evidence before the Court is that from the time that the applicant became aware of the Tribunal’s decision, he acted in a timely and appropriate way to challenge the Tribunal’s decision.
The Minister did not make any submissions on the issue of delay.
The applicant’s own evidence and that of his current lawyer remains unchallenged before the Court. The evidence is that the applicant had engaged a “lawyer” to represent him before the Tribunal. The application for review as reproduced in the Court Book does show that the applicant appointed a registered migration agent to represent and advise him before the Tribunal (CB 75). I therefore understand the applicant’s use of the word “lawyer” to be a lay person’s description of his migration agent.
The applicant’s evidence, and that of Mr Shiba, seeks to explain the delay in making the application on the basis that his migration agent did not advise him of the Tribunal’s decision and that he did not find out about the decision until his current lawyers made enquiry of the Tribunal and subsequently advised him.
On the basis of the relevant evidence before the Court, I am satisfied that the delay, noting in any event the short period involved, is satisfactorily explained for the purposes of s.477(2).
Merits of the Originating Application
The applicant confirmed that he is not alleging fraud or something akin to fraud on the part of his former migration agent. This is not a case therefore that requires consideration of what was said by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (“SZFDE”). Mr Young confirmed that no allegation whatsoever was being made against the migration agent. Except, of course, as the agent’s conduct relates to the question of delay.
The essence of the applicant’s complaint before the Court which underpins each of the grounds is that the Tribunal did not comply with relevant provisions in sending the letter of invitation to hearing pursuant to s.425. Mr Young described the attack on the Tribunal’s conduct as being a “technical point” about the provisions, but an “important one”.
The applicant is a citizen of Egypt. He arrived in Australia on 11 December 2008 and applied for a protection visa on 8 April 2009 (CB 1 to CB 26). His claims were set out in an attached statement (CB 27 to CB 32). The applicant claimed that he feared being detained by police if he were to return to Egypt. He feared harm from them in circumstances where he asserted that the government could not protect him from the police.
The applicant claimed to have lived in the United States of America for eight years with his US citizen wife and his daughter. While there, he claimed to have been harassed by the FBI (Federal Bureau of Investigation) and the US Department of Homeland Security who had arrested, charged, and investigated him.
It appears that the applicant was of interest to the FBI for matters relating to “… fraud, conspiracy, producing of fake documents/Identifications, wire fraud and mail fraud” (CB 30.2).
Ultimately, he was deported from the USA in January 2008. On arrival in Egypt he became of interest to the Egyptian police who thought he was planning a crime in Egypt. He was arrested and detained on a number of occasions.
The applicant was assisted by a registered migration agent in the making of his application for a protection visa (CB 9). The applicant notified the Minister’s department that all communications relating to his application should be sent to his migration agent. (See Q19 at CB 9.)
For the purposes of the application before the Minister’s department that part of the application form also directed the applicant to complete a: “Form 956 Appointment of a migration agent or exempt agent or other authorised recipient” (CB 9.9 – “Form 956”). The applicant was directed to attach the Form 956 to his application for a protection visa. This was done (CB 30 to CB 43).
In this form the applicant appointed the migration agent for the purposes of his application and authorised him as the recipient of correspondence from the Minister’s department. (See Q 14 at CB 41.)
The delegate refused the application on 24 June 2009 because she found that the applicant’s claims were not Refugee Convention related (CB 72).
The applicant applied to the Tribunal for review on 20 July 2009 (CB 74 to CB 77). He appointed the same migration agent to act for him in relation to this application. In the Tribunal application form the agent’s contact details were given as:
In relation to correspondence from the Tribunal the applicant indicated in his review application that he wanted all correspondence sent to his agent whom he had authorised for the purpose of receiving such correspondence (CB 76). The relevant part is as follows:
Also submitted to the Tribunal at the same time was another Departmental Form 956 purporting to again “appoint” the migration agent to represent him. In this form the following contact details in relation to the agent were given (CB 79):
In relation to electronic communication with the agent the following was provided (CB 80):
The Tribunal acknowledged receipt of the application by letters dated 21 July 2009. These were sent to the agent as the authorised recipient. They were sent by registered post to his business address provided in the application for review to the Tribunal. That is, the post office box address at Lakemba NSW (CB 82 to CB 83 and CB 75).
On 27 July 2009 the Tribunal received by facsimile transmission another completed version of one page of the Form 956 (CB 93) and another completed page 4 of the application for Tribunal review form.
This second version of the first page of the Form 956 reproduced the same details as previously provided, but also gave the applicant’s residential address and his mobile telephone number which had been omitted from the first version.
I note that in the “first” version the form is described as being submitted with an application “about to be lodged”, and in the second version submitted “with an application” “already lodged”.
The “second” page 4 of the application for Tribunal review form (CB 94) provided the applicant’s residential address, which had been omitted from the first version. It also substituted a street address as the agent’s relevant address instead of the earlier notified post office box address (CB 94.7 and CB 75.7).
Relevantly, the agent’s telephone number, mobile phone number, and fax number remained as had been previously advised (CB 75.8 and CB 94.8).
The applicant was sent a letter inviting him to a hearing before the Tribunal scheduled for 16 September 2009 (CB 87). The letter was sent to the migration agent (CB 86). It was sent by facsimile transmission to the fax number provided in the application for Tribunal review as initially received (CB 75 and CB 85) and in the subsequent amended page 4 of that application received by the Tribunal on 27 July 2009 (CB 94.8).
It does not appear that the applicant or his adviser made any response to the invitation. The applicant did not attend the hearing. The Tribunal proceeded pursuant to s.426A to make its decision ([19] at CB 102). The Tribunal was unable to be satisfied on what was before it that the applicant had a well founded fear of persecution for a Convention reason and therefore affirmed the delegate’s decision.
Mr Young referred to the migration agent’s answer at Q17 of Form 956. (He referred to the “first” version at CB 80.) The submission was that in answer to the question: “… do you agree to the department communicating with you by fax, e-mail or other electronic means?”, the agent answered “yes”. But in the space provided, although there was provision for both a fax number and an email address, he only provided an email address and did not provide a fax number.
The applicant’s argument now is that by the omission in the one instance, and by the provision of an email address, the agent should be taken to have said to the Tribunal that he did not want any communication sent to any fax number, and rather that the agent only consented to communication being sent to him by email.
The Tribunal subsequently sent the letter of invitation to hearing to the fax number. The argument was that this raises a question of importance because of the consequences that flow from s.426A. I understood the argument to be that given that the letter of invitation was sent in circumstances where the Tribunal stated that it could not make a decision favourable to the applicant, the absence of the applicant at the hearing in light of s.426A was “fatal” to his case.
Mr Young referred to s.441A which sets out the methods by which the Tribunal gives documents to a person other than the Secretary to the Minister’s department. He submitted that s.441A(5)(a) and s.441A(5)(d) provide that the Tribunal can give a document by fax by transmitting it to the last fax number provided by the recipient, in this case, the agent, to the Tribunal in connection with the review.
In all, therefore, by the submission to the Tribunal of the Form 956, the omission of any reference to a fax number, although being invited to submit one in that form, and the provision of an email address should lead to an inference that the agent did not want correspondence sent to his fax number, but only to his email address. By sending the letter of invitation to hearing to his fax number the Tribunal therefore did not properly invite the applicant to a hearing pursuant to s.425. In these circumstances it was not open to the Tribunal to proceed to a decision pursuant to s.426A because s.426A(1)(a) was not met. That is, the Tribunal did not give the applicant proper notice that he was invited to a hearing to give evidence.
Consideration
I have some difficulty with the applicant’s reliance on what was said to have been conveyed by the agent, in part by omission, in the Form 956.
It is trite to say that the Minister’s department and the Refugee Review Tribunal are separate entities. The former is created by administrative orders of the Governor-General in Executive Council. The latter is created by statute. (See s.457 and Divs.9 and 10 of Part 7 of the Act.) It is distinct from the Department, a statutory agency for the purposes of the Public Service Act 1999.
The relevant statutory regime relating to protection visas does provide in the first instance for a decision to be made by the Minister or his delegate on any application for such a visa. This relevantly involves satisfaction that an applicant for such a visa in effect meets the definition of “refugee” as set out in the UN Refugees Convention (ss.65 and 36(2)).
With reference in particular to Ground 2 of the further amended application, the Tribunal is compelled to review a decision to refuse a protection visa if a valid application is made under s.412. (With reference also to s.411(1)(c).)
It would be expected that a registered migration agent would comprehend that the Minister’s department and the Tribunal are separate entities. That the Tribunal has been established to provide an independent review of protection visa decisions made, in effect, by the Minister’s delegates.
Why, in this circumstance, therefore, the agent chose what is clearly on its face a Departmental form and not a Tribunal form to convey information to the Tribunal is not clear.
On its face, the Form 956 clearly relates to the appointment of a migration agent for the purposes of an application before the Minister’s department, not the Tribunal. At its head, the form makes clear reference only to the Department. There is an absence of any reference whatsoever to the Tribunal in the document. A registered migration agent who is presumed and expected to have relevant expertise in migration matters should have understood the difference between the two entities and the separate forms to be employed relevant to each.
Further, in relation to, and specific to, the issue of whether the agent agreed to the communication from the Tribunal only via email and by omission not via fax, the relevant question (Q17 at CB 80) makes it clear that that question is asked in the context of communication from the Department. There is no reference to the Tribunal. That is, if the agent had properly read the form, he was being asked whether he wanted the Department to communicate with him electronically and if so, to provide relevant details. There was nothing in the form to either ask or require the application of this question to the Tribunal or to the conduct of the review before it.
Mr Young submitted that, whether or not this was a Departmental form, by its provision to the Tribunal it constituted notification to the Tribunal of the way that the agent as the recipient of communication from the Tribunal wanted to receive any communication.
Mr Young stressed that s.441A(5) sets out the choice of electronic means by which a recipient can elect to provide to the Tribunal as the means of preferred or sole communication.
The argument is that the agent elected by the omission of a fax number in the Form 956 not to receive communication by fax from the Tribunal. By providing an email address only in that form he elected to receive communication electronically only in that way. With reference to s.441A(5), one of the methods by which the Tribunal may give documents, in light of the last advice provided by the relevant recipient, was the email address. The Tribunal’s failure to send the letter of invitation to that email address constitutes a failure to comply with a relevant statutory provision and therefore failure to properly invite the applicant to a hearing pursuant to s.425. This failure is an error going to the Tribunal’s exercise of its jurisdiction.
I do not agree.
Section 441A(5) is in the following terms:
“Transmission by fax, e-mail or other electronic means
(5) Another method consists of a member, the Registrar or an officer of the Tribunal, transmitting the document by:
(a) fax; or
(b) e-mail; or
(c) other electronic means;
to:
(d) the last fax number, e-mail address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
(e) if the recipient is a minor--the last fax number, e-mail address or other electronic address, as the case may be, for a carer of the minor that is known by the member, Registrar or other officer.”
First, I do not comprehend the meaning of s.441A(5) to provide the basis for the submission now made. In my view, the words “… provided to the Tribunal by the recipient …” is directed to the objective of ensuring that the Tribunal obtains the relevant address or number from the intended recipient and not from someone else. The reference to the “last fax number, e-mail address or other electronic address” is directed to enabling a document to be given to a recipient in this fashion, and when one of these are utilised it should be directed to the “last” of one or even each of the above.
I do not agree that the legislation limits the Tribunal to using only one of the three methods set out in s.441A(5). The methods set out at s.441A(5)(a) to (c) are not exclusive of each other. The Tribunal can give a document by transmitting it to the recipient by any one, or even all, of the methods set out. In my view that is made clear by the use of the word “or” as between s.441A(5)(a), (b), and (c). Section 441A(5)(d) must be read in the context of what precedes it.
The only limitation is that it must be sent to the last fax number, last email address, or last electronic number or address provided to the Tribunal by the recipient in communication with the review. The words “… as the case may be” appearing with reference to each of the three methods of transmission do not, in my view, limit transmission to the last of the three methods provided by the recipient but refer to the last address or number provided for each, if any, of the three methods of transmissions.
Second, even if Mr Young’s interpretation were to be accepted (which I do not) I cannot see in the circumstances of this case that the “last” address provided for the purposes of s.441A was the email address. Nor do I agree that in the circumstances the omission of a fax number and the inclusion of an email address in the Form 956 can be said to lead to only one inference being drawn. That is, that the agent/recipient did not want any communication by fax, but only by email.
The best view of the evidence before the Court is that the Form 956 was submitted to the Tribunal at the same time as the application for Tribunal review. The Form 956 is said to have been signed by the agent on 20 July 2009 (CB 80.7). The application for review is stamped as having been received by the Tribunal on the same date. It was given “by hand” (CB 74).
In circumstances therefore where both “forms” were submitted at the same time, even on Mr Young’s argument, it cannot be said that what was contained in the Form 956 was the “last communication” as to the agent’s election as to his preferred method of receiving communications.
The application for review form at “Section C” is relevant to circumstances where an applicant for review seeks to authorise an adviser to act in relation to that application. The “first” “Section C” relevant to this case is reproduced at CB 75. That part of the form shows that the agent provided his mailing address and relevantly, a fax number. He signed immediately below.
It is difficult to conceive of any other purpose than that the form asked for, and the agent provided, the various contact details by which communication with him by the Tribunal could be achieved. That is for the purposes of the methods set out in s.441A.
Further, I do not understand the legislation to require the Tribunal to obtain the recipient’s agreement in the sense implicit in Mr Young’s submissions. The Tribunal’s obligation is to give the document to the recipient by one of the methods set out in s.441A. Any one of the methods. I cannot see that the legislation provides for any explicit agreement by the recipient. The recipient’s “election” in that sense occurs in whatever contact address, or telephone number, or other type of communication the recipient chooses to provide to the Tribunal.
As long as the Tribunal sends the document to the last such residential or business address, or telephone number or, relevantly fax number provided by the recipient to the Tribunal in connection with the review, then the Tribunal has complied with the relevant statutory requirement.
The Form 956 may indeed provide for an election. But it is an election as to whether the recipient wants to receive fax or email communication, or any other electronic communication from the Department. As it applies to the Tribunal, even if the Tribunal were to note that the recipient wanted to receive communication by electronic means, given the language of the form and the absence of any exclusion of any other method of communication by the recipient, it would still be open to the Tribunal to give the document by any one of the other methods in s.441A, as long as it was to the last relevant address provided by the recipient in connection with the review.
On my preferred view of the legislation the Tribunal sent the letter of invitation to hearing to the authorised recipient by fax to the last fax number provided to the Tribunal by the recipient in connection with the review. What else could the adviser be doing in providing his fax number to the Tribunal in the application for review form but providing this number in “connection with the review” (s.441A(5)(d))?
The Tribunal therefore properly utilised one of the methods set out in s.441A(5) in giving the document to the recipient by transmitting it by one of the methods set out in s.441A(5), that is, by fax, and complied with the requirement that it was sent to the last fax number provided by the recipient in connection with the review.
In my view, that is sufficient to dispose of the applicant’s complaint.
But even if Mr Young’s view of the legislation were to be preferred (a view which I do not prefer) the applicant would still not succeed.
Mr Young’s argument focuses only on the Form 956 to the exclusion of what is set out in the application for Tribunal review. Both forms were submitted to the Tribunal at the same time. There is no evidence before the Court to counter this inference.
In the application for review, in that part signed by the migration agent/authorised recipient (“Section C” at CB 75), the migration agent provided a range of contact details. Importantly, he provided a fax number. Mr Young submitted that because he did not provide a fax number in the Form 956 when invited to make the election a strong inference arises that he did not want the Tribunal to communicate with him by fax.
Even putting firmly to one side that the Form 956 was not a Tribunal form, and given the circumstances that both forms were presented at the same time, a much stronger inference to be drawn is that the agent only provided his email address in the Form 956 and did not provide his fax number because he had provided it in the other (Tribunal) form at the same time. A form which made no provision for the inclusion of an email address. In that sense it is a perfectly reasonable explanation, and in the absence of any direct evidence to the contrary by the migration agent, it is a preferable inference to be drawn that he only provided the email address in the Form 956 because he had already provided the fax number in the application for Tribunal review form, which was accompanied by the Form 956.
Mr Young submitted that what was presented in the Form 956 “qualified” what was presented “in the other form”. I have some difficulty in accepting that an “omission” in a Departmental form can be said to “qualify” what is put in a Tribunal form. Noting, of course, that the Tribunal form was actually the application for review and plainly submitted for the purposes of the review. To categorise the application for review as just some other form and to emphasise the importance over it of an omission in a Departmental form that was not required to be submitted is, in my view, a convenient contrivance.
No direct evidence has been presented by the applicant as to the agent’s motivation for submitting the Form 956 to the Tribunal. What remains is that two forms were given to the Tribunal, on the best evidence available, at the same time. The Tribunal form had no provision for contact by email. The Form 956 did. The agent’s inclusion of his email address in that form is explained for that reason. Similarly the omission of the fax number is that that had been provided “in the other form”.
If the agent did not want to receive communication by fax then it was open to him not to have provided his fax number to the Tribunal in the relevant application for Tribunal review form.
Mr Young submitted that even if the two forms were submitted at the same time by the adviser, in submitting the Form 956 at the same time as the review application, he was seeking to convey some further information. That is, by omitting the reference to the fax number and including the reference to the email address he was seeking to convey to the Tribunal that he did not want communication by fax and only wanted communication by email.
My Young’s argument relies on the assumption that because the Tribunal’s form does not specifically ask whether the recipient wants to receive or not receive documents by the methods provided for in that form, but that the Form 956 does, the migration agent’s submission of the Form 956 with only the reference to his email address should be taken to be a notification that he consented to receiving documents by email only. That he therefore did not “authorise” the sending of documents to him by fax.
To the extent that the argument relies on the assertion that s.441A requires consent in that way the submission does not succeed for the reasons set out above.
To the extent that the submission seeks to argue that the omission of the fax number from the Form 956 means that it was not the “last” method communicated to the Tribunal, then this also does not succeed because there is nothing to show that the two forms were submitted other than at the same time.
In any event, the agent did submit his fax number in the Tribunal’s form in connection with the review. It was the last fax number he provided.
I find it difficult to conceive that if the relevant Tribunal form sets out appropriate “spaces” for various contact details it could be taken to mean that the Tribunal was simply seeking this information for some unknown academic purpose.
Yet this is implicit in Mr Young’s submission. Any plain reading by any reasonable person, let alone a registered migration agent who is supposed to have professional expertise in assisting people in making migration and review applications, would clearly understand that the Tribunal form not only sought the provision of contact details, but that the provision of such details could lead to the Tribunal utilising one of these methods to communicate with the recipient.
If the agent did not want communication by fax, then all he had to do was to omit his fax number from the application for review form. It seems a convoluted and inefficient way to communicate this by completing another form and repeating much of the same information merely to omit a fax number and submit an email address.
Ms Francois submitted that the applicant’s submissions relied in great part on the Court needing to take judicial note of the conduct of migration agents and to draw inferences from this agent’s conduct that the provision of the Form 956 with the review application, omitting the fax number and including the email address, was the act of a careful person wishing to convey to the Tribunal that he only wanted to receive communication by email and not by fax. That is, that the agent’s conduct was meant to convey this specific meaning.
I agree with Ms Francois that to the extent that the applicant’s submission requires such judicial notice that migration agents always act in a competent and careful manner, then on what has been put before the Court in cases of his type there is no basis to note that this is always the case.
I also agree with Ms Francois that the resolution of this issue is to consider what this agent has actually done in this case. He submitted the application for Tribunal review. This was accompanied by the Form 956. The application for review included his fax number. There was no provision on the form for an email address. The Form 956 does have provision for an email address, albeit in the context of communication from the Department, not the Tribunal. He provided his email address, for the purposes of the argument, to the Tribunal. Without anything else whatsoever the omission of the fax number in the Form 956 in all the circumstances referred to above is not sufficient to allow the inference put forward by the applicant now. This also is a complete answer to the applicant’s complaint.
But even further, what must also be considered in the resolution of this matter is what Mr Young referred to in written submissions as: “Curiously at CB 94, there is another document date stamped by the RRT on 27 July 2009” (at [6] of the applicant’s written submissions).
The document reproduced at CB 94 must be seen also in light of what is reproduced at CB 93. Here is a copy of another completed version of “page 3” of the Form 956. (What appears to be the first page of this form for the appointment of a migration agent in matters before the Minister’s department, not the Tribunal.)
This page clearly relates to the applicant (CB 93.3). Some of the details are correspondingly the same as previously provided in the earlier version of the relevant page of the Form 956. Additional information is also provided. For example, the applicant’s residential address which was omitted from both the “earlier” Form 956 and the application for review form.
The document at CB 94 is “page 4” of the application for Tribunal review. That is, that part of the form containing “Section C”. In addition to repeating the information provided earlier in the complete application for review at “page 4” (CB 75) this version provides the applicant’s residential address and mobile telephone number. The advisor’s signature appears at the foot of the page.
Both pages were sent to the Tribunal by fax. (See the relevant details at the top and bottom of each page.)
What presents then is that on 27 July 2009 the Tribunal received this communication. This was seven days after the application was made and importantly four days before the date of the letter of invitation to hearing (31 July 2009 – CB 86 to CB 87).
There is nothing on the face of either of these two pages to show who actually sent them to the Tribunal. It is clear that these two pages were the second and third pages in the relevant transmission. (See the relevant fax notations at each of CB 93 and CB 94). If page one was the fax transmission cover sheet which could have provided this detail then the decision by the Minister’s representatives not to include it in the bundle of relevant documents is unfortunate. No complaint, however, was made by the applicant’s representatives if it was the case that this document could have otherwise been of assistance to the applicant.
Nonetheless what can be said is that the Tribunal received this document at a time later than the document relied on by the applicant now. (The Form 956 as it is reproduced at CB 78 to CB 81.) It was received prior to the date of the letter of invitation to hearing. It plainly relates to the application for review, given what was provided in the two documents. The page at CB 94 (the “second” version of “Section C” of the Tribunal’s review form) contains the signature of the applicant’s representative and his migration agent registration number. That is, the person who has been authorised to be the recipient of correspondence from the Tribunal.
In these circumstances, and in circumstances where there is no evidence before the Court that the applicant took any action in submitting relevant documentation himself to the Tribunal, and given the applicant’s evidence in his affidavit of 9 November 2009 that he had very little knowledge about the conduct of his case before the Tribunal, that is, that he left it to his “lawyer” (in context, the migration agent), a clear inference can be drawn that these documents and their contents were provided to the Tribunal by the agent. That is, in context and ultimately, the recipient of the letter of invitation to the hearing. No other reasonable inference can be drawn that they were provided other than in connection with the review and where relevant, to update relevant contact details.
The document at CB 94 provides a fax number. The same number as previously provided for the migration agent. It is clearly (when seen in context) the agent’s fax number. In these circumstances, even if the Court were to accept Mr Young’s view of the relevant legislation (which I do not) the Tribunal sent the letter of invitation to hearing to the “last” fax number provided by the relevant recipient to the Tribunal in connection with the review.
Importantly, as between receiving a document by email or by fax there was no email address provided in this last communication from the applicant’s representative. The document at CB 93 makes provision for an email address to be provided. While the representative provided his mobile telephone number the “e-mail address” block is left blank (CB 93.6).
Whatever Mr Young may say the agent was doing with the submission of the Form 956 on 20 July 2009, on 27 July 2009 he submitted to the Tribunal a fax number, which was the “last” fax number provided in connection with the review. If he wanted to only receive correspondence by email he did not say so as at 27 July 2009 the relevant part of the “second” Form 956 was left blank.
It was to this fax number that the Tribunal sent its letter of invitation. The Tribunal therefore complied with the relevant statutory requirement.
In essence, this was the only issue raised by the applicant before the Court. It underpinned each of the grounds of the amended application.
Ground 1 does not succeed because the Tribunal did invite the applicant to a hearing pursuant to s.425. The letter of invitation complied with all relevant statutory and regulatory requirements.
Ground 1A does not succeed because in the circumstances the Tribunal was entitled pursuant to s.426A to proceed to making its decision without taking any further action to enable the applicant to appear before it.
Ground 1B does not succeed because the Tribunal did properly invite the applicant to appear at a hearing before it, including the giving of notice of the day, time, and place for the hearing. The Tribunal employed, and met the requirements in s.441A(5)(a) and (d) in doing this.
Ground 2 does not succeed because the Tribunal did not fail to review the decision pursuant to s.414. The Tribunal properly invited the applicant to a hearing. For whatever reason, he did not attend. For the reasons that it gave, the Tribunal was unable on what was before it to reach the requisite level of satisfaction such that the protection visa must be granted. This is said with reference to the relevant statutory requirements (ss.65 and 36(2) - SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
The applicant’s particulars to Ground 2 assert that the Tribunal “failed to make findings in relation to substantive allegations made by the applicant.” If this means that the Tribunal failed to deal with the applicant’s claims then this misconceives both the task statutorily set for the Tribunal and the nature of the Tribunal’s findings and conclusions. The Tribunal dealt with the applicant’s claims but found that in the absence of anything further from the applicant it could not reach the requisite level of satisfaction such that it could find the applicant had a well founded fear of Convention related persecution such as to engage Australia’s protection obligations towards him.
With the benefit of legal advice and representation the applicant’s grounds in his substantive application lack merit. In these circumstances, I cannot see that it is in the interests of the administration of justice to grant an extension of time for this application to be heard further before the Court. Noting that the merits of this application were fully pressed and argued before the Court in any event.
Other Considerations
I cannot see any great prejudice to the Minister if the application to extend time were to be granted. The impact on the applicant would on the other hand be considerable. The applicant would have no lawful basis on which to remain in Australia and given his country of nationality would most probably be returned to Egypt.
The counterbalance to this is that the Tribunal could not be satisfied that such harm as the applicant claimed had occurred in the past, had in fact been occasioned on him. But even if it had, the Tribunal could not be satisfied that it was done for any Convention reason. (See [37] at CB 108.)
While the Australian community would be concerned to see the refoulment of a refugee to the country of claimed persecution, the applicant has been found, in effect, not to be a refugee.
In balancing all these factors in exercising the Court’s discretion pursuant to s.477(2)(b), I do not regard the delay in making the application to the Court or any prejudice to the respondent as being such in and of themselves as to deny the extension the applicant seeks.
However, this is counterbalanced by the lack of merit in the application as ultimately expressed in the further amended application. It is not in the interests of the administration of justice to grant the extension sought given that the purpose of granting the extension would be simply to hear, and in the circumstances re-hear, an application which has been fully pleaded and pressed with the benefit of counsel, but nonetheless found to lack substantive merit.
Conclusion
For these reasons I do not exercise the discretion in s.477(2) to extend the time for the making of the application. In these circumstances and in light of s.477(1) the application made on 27 October 2009 and as further amended on 30 March 2010, is not competent. I will therefore make an order dismissing the application for that reason.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 22 June 2010
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