SZOPD v Minister for Immigration

[2011] FMCA 178

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPD v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 178

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

PRACTICE & PROCEDURE – Complaint concerning standard of interpretation – solicitor for applicant seeking to have applicant further examined – application to re-open dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and was given the pseudonym “SZOPD”.

Migration Act 1958 (Cth), ss.45, 65, 66, 91X, 412(1)(b), 417, 494A-494D

H v Minister for Immigration & Multicultural Affairs [2002] FCA 126
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 200 ALR 359
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284
Minister for Immigration & Citizenship v Abdul Manaf (2009) 111 ALD 437
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11
Pomare v Minister for Immigration & Citizenship [2008] FCA 458
Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240
Singh v Minister for Immigration & Anor [2010] FMCA 305
Sloane v Minister for Immigration, Local Government & Ethnic Affairs (1992) 28 ALD 480
SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79
Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327

Applicant: SZOPD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1909 of 2010

Judgment of: Lloyd-Jones FM

Hearing dates: 20 December 2010 and 7 February 2011

Date of Last Submission: 7 February 2011

Delivered at: Sydney

Delivered on: 1 April 2011

REPRESENTATION

Advocate for the Applicant: Mr Silva (solicitor)

Solicitors for the Applicant: Silva Solicitors

Advocate for the Respondents: Mr Markus (solicitor)

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application, filed on 31 August 2010, is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG1909 of 2010

SZOPD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In accordance with the Court orders made on 19 October 2010, the solicitor for the respondent was required to file a folder which was to be indexed, labelled and paginated containing all of the documents which may be relevant to the hearing.  This order was complied with and the volume is identified as Court Book (“CB”).  On the date of the hearing, the Court Book was marked Exhibit “A”. 

2. An affidavit of [SZOPD] affirmed 12 November 2010, and filed in Court on 15 November 2010, was read.  Mr Silva, appearing for the applicant, sought leave to file a further amended application.  Mr Markus raised objection to the late filing of this document and the attempt by the applicant to introduce new evidence.  After hearing submissions from both parties, leave was granted for the filing of the further amended application and I granted Mr Markus an opportunity to file further submissions in relation to ground two.

The proceedings

1. The applicant states that she was born in Suva in 1952 and is classified as a native Fijian and a Fijian citizen by birth.  She was brought up and educated in Suva from 1958 to 1965.  She attended firstly Serea Primary School in Suva and then Naitasiri High School from 1966 to 1969.  She states that she did not go for further education and started work as a house keeper at various homes from 1970 to 1990.  She was then employed as a machinist and finally as a self employed tailor. 

2. She states that she became interested in politics since Fiji gained independence in 1970 and it was at that time that a large number of people in Fiji saw and experienced the racial gap between ethnic Indians and ethnic Fijians.  At that time, she was a strong supporter of the Alliance Party which was regarded as the Native Fijian Party.  She supported the Alliance Party in its various campaigns during elections from 1970 to 1987.  She supported the party by raising funds and participated in campaigning against the Indian community which was well recognised by the ethnic Fijian leaders of the Alliance party.  She stated that she campaigned in the Indian communities because she could speak Hindi.  She states that on several occasions she was praised by candidates and other leaders in meetings of the Alliance party for being a very successful campaigner and became recognised in the political field. 

3. In 1985, the Fijian Labour Party was formed mostly by members of the trade unions and she states that she found that the Fijian Labour Party had a more balanced policy in race relationships and economic development in Fiji.  It was well supported by ethnic Indians as well as native Fijians.  She stated that she was attracted to join the Fijian Labour Party.  As she had previously been seen by the natives and their leaders as a staunch supporter of the native dominated alliance party they saw the sudden change in her political opinion.  This enrages many natives, their leaders and security officers that she claims led them to hating her.  Her standing in the Fijian community was heavily damaged. 

4. People saw her previously campaigning for the Alliance Party in the Indian community and then the same person campaigned in the same community in support of the Fijian Labour Party.  As a result she became an enemy of the natives, ethnic Fijian leaders and the security forces of Fiji which were largely composed of native Fijians.  The applicant stated that she continued supporting the Fijian labour party through the 1987 elections and the 1999 elections.  She remains a staunch supporter of the Fijian Labour Party despite harassment, abuse, mistreatment, physical attack and threats to her life by none other than the native Fijians, security officers of Fiji and the native leaders.

5. The applicant claims she was persecuted by being ostracised by the native Fijian community because of her political opinion.  She suffered harassment abuse and physical attack by native and Fijian soldiers after the first coup in 1987 when the Fijian labour party and the National Federation Party coalition government was ousted by the Fijian military led by Sitiveni Rabuka.  She states that a few weeks after the coup, a Fijian soldier entered her home by force.  He demanded that she should get married to him so that she could change her political opinion to join Rabuka.  The soldier threatened to kill her if she refused to marry him.  She states that he placed a gun at her neck and forced her to agree with him on the spot.  Fijian neighbours arrived and the soldier withdrew before anything further occurred.

6. In the 1999 general election, the applicant supported the Fijian labour party which won the elections and formed the government and Mahendra Chaudhary became the Prime Minister.  The labour government was very successful for one year however the natives did not like the Indian Prime Minister.  The Great Council of Chiefs and the Fijian army are suspected of conspiring against the labour government which was ousted by a civilian George Speight on 19 May 2000 at gunpoint.  Members of parliament were made hostage for 56 days by George Speight’s rebel group.  It was at this time that many people saw and suspected the Great Council of Chiefs and the Fijian army was supporting the Speight rebels.

7. The applicant left Fiji for Australia on 16 April 2001and travelled on a visitor’s visa class TR visa, sub-class 676 visa which was valid for three months from the date of arrival. 

8. The applicant applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 16 July 2001.  A delegate decided to refuse to grant the visa on 5 December 2001 and notified the applicant of the decision and her review rights.  On 22 July 2002, the applicant applied to the Refugee Review Tribunal (“Tribunal”) for a review of the delegate’s decision.  On 31 January 2003 the first constituted Tribunal (decision of Tribunal member S Karas RRT reference number N02/43706) made the decision that it did not have jurisdiction to review the decision, refusing to grant the applicant a Protection visa because the review application was received outside of the mandatory time limit and was not a valid application.  The reasons and findings of the first Tribunal are set out below.

9. In March 2003, a s.417 request was forwarded to the Minister on behalf of the Applicant (CB 67). A response from the Minister’s office dated 6 May 2003 indicated that, as the Tribunal did not make a decision on the merits in relation to the Applicant’s case, the power under s.417 of the Act was not available to be exercised (CB 70). On or around 2 July 2004, a further s.417 request was sent to the office of the then Minister supported by a statement from the applicant’s son (CB 72-74 and 75-76). In the response dated 2 March 2005, the applicant was informed, once more, that the power under s.417 of the Act was simply not available to the Minister in the circumstances of this case. The letter also asked the applicant to contact the nearest regional office of the Department to discuss her status in Australia (CB 78).

10. On 13 October 2009, the assistant manager of the Onshore Protection Support Team of the Department issued a letter to the applicant purporting to notify her of the decision made on 5 December 2001, to refuse to grant her an application for a Protection visa (CB 80).  This was in effect a re-notification of the primary decision made by a delegate of the Minister issued as a consequence of the decision in Pomare v Minister of Immigration & Citizenship [2008] FCA 458.

11. The applicant applied again to the Tribunal on 4 November 2009 for a review of the delegate’s decision.  It is the decision of the second Tribunal constituted by the Tribunal member, Dennis O’Brien, RRT reference number 0908778 dated 23 December 2009 that is the subject of the application currently before this Court.

First Tribunal Decision

1. The decision of the first Tribunal (referred to in [10] above) stated it did not have jurisdiction to review the decision of the Minister’s delegate made on 5 December 2001 which refused to grant the applicant a Protection visa.  The reasons for its decision are succinctly stated as follows:

   The Tribunal has before it the Department’s file, which includes the protection visa application, the letter notifying the applicant of the delegate’s decision, and the decision record.

   The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2) of the Act. The notice was dated 5 December 2001.

2. The notification letter issued by the Tribunal to the applicant dated

   
   

   3 February 2003 encloses a copy of the Tribunal’s decision and reasons which confirms that the Tribunal had decided that it had no power to determine the application and the Tribunal was unable to review the delegate’s decision.  The applicant was advised of her avenue for review in the following statement:

   What if I disagree with the Tribunal decision?

   You may have a limited right to seek review of the decision by the Federal Court, Federal Magistrates Court and / or the High Court.  There are strict time limits within which an application for review by the courts must be filed.  I strongly advise you to promptly seek legal advice if you wish to seek review by the Courts.

3. This course of action was not pursued by the applicant and the decision of the first Tribunal remains unchallenged.

Second Tribunal decision

1. The member of the second constituted Tribunal sets out the circumstances of the second application in the following paragraphs:

   4. The Department purported to re-notify the applicant of the preliminary decision by a further letter to the applicant dated 13 October 2009, which was delivered by hand on 13 October 2009.

   5. The applicant applied to the Tribunal on 5 November 2009 for a review of the delegate’s decision.

   6. The question that arises in this case is whether the Tribunal has jurisdiction. Whether it does depends on whether the first notification letter was a valid notification under s.66(2)(d) of the Act.

   7. The Tribunal forms the preliminary view that it did not have jurisdiction because the first notification letter was a valid notification under s.66(2)(d) of the Act, and the application for review was received outside the prescribed time limit. The Tribunal wrote to the applicant on 26 November 2009 inviting submissions on this issue. The Tribunal received written submissions on 10 December 2009.

2. The findings and reasons in the decision by the Second Tribunal are briefly and clearly stated as follows:

   17.  The Tribunal finds that the applicant is seeking review of an RRT – reviewable decision covered by s.411(1)(c) and that the applicable prescribed period is 28 days, commencing on the day on which the applicant was notified of the decision: s.412(1)(b) and r.4.31(2)(d).

   18. The material before the Tribunal indicates that the applicant gave the Minister written notice under s.494D of the name and address of an authorised recipient and that the first notification letter was sent by registered mail to the authorised recipient on 5 December 2001.  Although the authorised recipient’s address, as supplied by the applicant, was not a post office address, it is clear from the authorised recipient’s correspondence with the Department that the post office box address to which the first notification letter was sent was an accurate postal address.  A copy was also sent to the applicant at her residential address.

   19. The Tribunal finds that the first notification letter was dispatched within 3 working days of the date of the letter to the correct address, in accordance with s.66(1) and, s.494B(4) and was sent by prepaid registered post (RP13716854).  Therefore, the applicant is taken to have received the first notification letter on 14 December 2001.

   20. The Tribunal is satisfied that the contents of the first notification letter complied with the requirements of s.66(2).  The Tribunal is satisfied that a Tribunal brochure providing information about where the application for review could be made was attached to the first notification letter having regard to the facts outlined in paragraphs 21 and 22.

   21. The Departmental file shows that, under the heading “Review Rights”, the first notification letter states, “As you have been refused a Protection visa, you may apply to have this decision reviewed by the Refugee Review Tribunal (RRT). Information about applying for review is included with this letter”. After the signature section, the first notification letter includes the word “Enclosure”. The version of the Tribunal brochure that existed at the time the first notification letter was sent to the applicant, gave a street address and post office box address for the Tribunal. The Tribunal is therefore satisfied that the Tribunal brochure was attached to the first notification letter complied with the requirements of s.66(2)(d)(iv) of the Act.

   22. After receiving the first notification letter, the applicant applied to T1 on 22 July 2002 for review of the delegate’s decision.  The written submissions provided by the applicant’s authorised recipient stated that the applicant had lodged her review application out of time due to financial hardship.

   23. The Tribunal wrote to the applicant on 26 November 2009 indicating its view that the purported Registrar re-notification, and inviting her to make any written comments in relation to the question of jurisdiction.  The Tribunal received a response from the applicant on 10 December 2009, in which, in part she said:

   I wish to re-affirm to you sire that it was not my mistake that I had exceeded the timeframe to lodge an appeal to the RRT for decision on my protection visa application was not sent to me by the department.  It was confirmed to me by the officer who had served me on the 13^th October of this year.  The Officer had admitted that the decision made on 5^th December 2001 but was not mailed to me.  He then provided me on that date the 13^th October 2009 with a copy of the decision.

   Although my Bridging visa E was still valid at that time, the letter provided by the department on the date gave me the provision and opportunity to appeal the decision on the Refugee Review Tribunal as an option but I had to file the appeal within 28 days.

   My application for the Refugee Review Tribunal was lodged on the 4^th November 2009 as you will note on the front copy of the application form (attached) and it is well within the 28 days timeframe.

   24. The Tribunal has considered the submissions provided on 10 December 2009 but does not accept that they provide a basis for accepting the review application on 4 November 2009.

   25. On the basis of the information relating to notification of review rights given in the first notification letter, the Tribunal finds that the letter was valid, and that the applicant was properly notified of the delegate’s decision, and is taken to have been notified on 14 December 2001.  Once a delegate’s decision has been correctly notified, the time to make a valid review application does not start again, even if the applicant is given the primary decision again: MIAC v Abdul Manaf [2009] FCA 963.  Therefore, the prescribed period of 28 days within which the application for review could be lodged entered on 11 January 2002.

Grounds of review

1. The further amended application filed in Court on 20 December 2010 lists the following grounds:

   1. The Tribunal made jurisdictional error in misconstruing section 66 of the Migration Act 1958.

   Particulars

   Even if the purported notification of the applicant in 2001 is valid, which is not conceded, s66 does not make re-notification (CB 80) invalid.  Minister’s power to notify is not limited to one notification.  If the Minister formed a view that the applicant need to be re-notified for whatever reason, the Minister can validly notify an applicant.  The time for review will run from the day of notification.

   2. The Tribunal made jurisdictional error in holding that it had no jurisdiction to review the application for review made in 2009 on the basis that the purported notification in 2001 was valid.

   Particulars

   (a) The applicant was not validly notified in 2001 as the information about where to lodge the review (ss 66(2)(d) and the details of the strict timeframe involved were not included in the notification letter.  There is no evidence that such information was enclosed as the Department file does not include a copy of such information.

   (b) Alternatively if the Court finds that it was enclosed then as stated in an internal communication of the DIAC “The notification letter to the client must either specify the address in the body of the letter or specifically mention the leaflet to cover the Pomare issue.  The words “information about applying for review is included with this letter” do not adequately cure Pomare.  Due to this being absent, the client need to be renotified of the decision and the 28 day clock will reset.

Applicant’s sworn evidence

1. The applicant gave sworn evidence in respect to the content of her affidavit, dated 15 November 2010.  The applicant confirmed that the contents in the affidavit were correct excluding paras. 29 and 30 which she sought to amend.  These amendments were minor in effect.

2. Mr Markus then cross examined the applicant.  The initial sequence of questions concerned the applicant’s command of English and she confirmed that she understood and conversed in the language however the Fijian – English interpreter was requested to continue the translation of all questions and responses.  The following exchange occurred:

   Mr Markus: Now, this document that you have, the affidavit that you have sworn 12 November, you can read that document yourself, can you? 

   Interpreter: She can read the document, but she cannot understand it well.

   Mr Markus: What can’t you understand about it?

   Interpreter: I was telling her what can’t she understand in number 29 and 30.  What she couldn’t understand was the finding that was written here. 

   Mr Markus: Madam applicant, you indicated to me that you can read English, do you agree with that?  So you understand what the words that are in the affidavit are.

   Interpreter: Yes.

   Mr Markus: And is it correct that this affidavit was prepared by you, in effect, talking to your solicitor and then your solicitor writing it down, and then you agreed to those words and signed the document; is that correct?

   Interpreter: Yes.

   Mr Markus: Did you have reference to any other documents when you were preparing this affidavit?

   Interpreter: Yes.

   Mr Markus: Yes.  Did you, for example, have reference to the documents that are contained in the bundle of documents, this green bundle? This book, this book.

   Interpreter: Yes

   Mr Markus: So what you were saying to your solicitor wasn’t entirely from your memory; is that correct?

   The witness: No

   Mr Markus: I think, madam applicant, that we will go through the formalities of the translation and interpretation.  In any event, can I just suggest to you that some of the contents of your affidavit are not entirely correct?

   Interpreter: All she wrote here was true.

   (Transcript p12)

1. Mr Markus then questioned the applicant about the evidence in the affidavit at para. 4 which states:

   4. On a day during the first week of January 2010 I went to the Tribunal to find out why I have not heard from them and a person at the counter asked me “Didn’t you receive a decision letter from the Tribunal?” I said “No”.  Would you please give me a copy of that letter?  Another mail person came and gave me a copy of the decision.

   The reliability of that statement was placed in question as it was contradicted by the Departmental case note (3933199 CB 106).

2. This line of questions caused the applicant considerable confusion resulting in the following interjection by Mr Silva.

   Mr Silva: Your Honour, with respect, I am not sure whether the interpreter is competent in interpreting.  I am not sure about that because …

   Interpreter: Just…

   Mr Silva: …you know, because – I am not sure what Mr Markus thinks, what the Court thinks, but I am not sure.  Could see that there is confusion here and I honestly believe that the interpreter may not be competent enough to interpret to the Court (transcript p.15-16).

3. It was apparent that the interpreter was communicating to the applicant more than the questioning by Mr Markus.  There appeared to be an element of anticipation of further questions that were going to be asked and it appeared this was being discussed between the interpreter and the applicant.  There was also confusion about the distinction between the Department and the Tribunal.  I requested the interpreter to adhere strictly to her task of translating Mr Markus’ question to the applicant and relaying her response without any other comments to the applicant. 

4. There was considerable confusion in the interpreter’s and applicant’s understanding of the case note which the applicant was being examined on.  I resorted to the procedure of going through the case note line by line indicating that Mr Markus was asking questions about the date discrepancy in that note compared with those in para. 4 of the applicant’s affidavit.  Cross-examination then proceeded without further complaint regarding interpretation and issues arose regarding the original Protection visa application and the retention of a migration agent to pursue that claim.  There were questions in respect to the amount paid to that agent were the subject of a later complaint to the Minister. 

5. The following sequence of questions relate to the complaint was made to the Minister:

   Mr Markus: And you complain that the migration agent promised you a work permit and you complained you never got the work permit.  And you complained that the migration agent promised you a tax file number.

   Interpreter: Yes.

   Mr Markus: And you complained that they promised you a medicare number?

   Interpreter: Yes

   Mr Markus: And you complained that you felt robbed, mislead, mistreated.

   Interpreter: Yes.

   Mr Markus: And you also complained that you lodged a Refugee application, even though you told them that Fiji is not in any way shape or form a refugee country: is that not the case? So in effect, what happened you went to see the migration agent because you wanted to stay in Australia; is that not the case?

   Interpreter: Yes

   Mr Markus: And your son was already living here and you wanted to look after his daughter?

   Interpreter: Yes

   Mr Markus: And the migration agent looked at your case and told you that the only way you can stay here was if you lodged a Protection visa application.

   Interpreter: Yes

   Mr Markus: And Boris, your son, and you were unhappy with that; is that right?

   Interpreter: Yes it’s true.

   (Transcript p20)

6. Questions arose about correspondence between the applicant’s agent and the Minister with reference to the number of dates which were incorrect.  This was followed by the following exchange.

   Mr Markus: OK. In any event, you then wrote and your son wrote, to the Minister in July 2004; do you remember that?

   Interpreter: Yes. 

   Mr Markus: And that request was also declined in March 2005?

   Interpreter: Yes

   Mr Markus: And at that point you didn’t have any valid basis for remaining in Australia; is that correct?

   Interpreter: Yes that’s correct.

   Mr Markus: And you remained in Australia for some years until you then next approached the Department after your former partner had died; is that correct?

   Interpreter: That’s correct. (Transcript p22)

7. My observation of the applicant is that she is a middle aged Fijian woman who was able to communicate in English but it was difficult to assess her real comprehension of the language.  She was clearly nervous and unsettled by the alien atmosphere of the Court environment accentuated by the strain of cross-examination where her recollection of particular dates and sequence of events were being examined and challenged.  It appeared that she had a recollection of most of these events however the preciseness of some dates and a number of cases the relevant year were not. 

8. The interpreter was also a middle aged Fijian woman who was acutely aware of the applicant’s nervousness and apprehension of being cross-examined and it was obvious that she was endeavouring to assist the applicant in this task.  This was acutely obvious when the interpreter on a number of occasions early in the cross examination put her hand on the applicant’s shoulder in an attempt to settle the applicant’s nervousness. 

9. I am unable to understand the subtleties of the Fijian language however it appeared that the interpreter was providing words of encouragement to the applicant in the presentation of her evidence.  I believe that after the interpreter was requested to desist from this and limit her role strictly to interpretation that did occur. 

10. These issues are addressed further in the section in respect to re-opening.

Consideration

Ground one

1. Mr Silva, in his written submissions, contends that the essential point of the argument is that even if a purported notification of the applicant in 2001 is valid, s.66 does not make re-notification (CB 80) invalid. The Minister’s power to notify is not limited to one notification. If the Minister formed a view that the applicant needed to be renotified for whatever reason, the Minister can validly notify an applicant. The time for review will run from the day of notification. Mr Silva argues that there is no legislative intent by parliament to prevent the Minister from notifying again if in the Minister’s opinion it was required. The legislation required the Minister to notify at least once after the refusal but it does not prohibit the Minister from notifying the Applicant once again.

2. Mr Silva notes the opening words in s.66(1):

   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…

   Mr Silva submits that these words should not be taken to limit the Minister to an immediate notification or only a single notification.  The section should not restrict the Minister to immediately notify because as a common practice, the Department for Immigration notifies visa applicants sometimes several years later if it forms a view that they have not been properly notified.  It is submitted that this proposition could be ambiguous by the Court.  What is questionable is whether the Minister has the power to notify again even though he/she has notified an applicant before.

3. The Tribunal in its decision at [23] (CB 103) states that:

   The Tribunal wrote to the applicant on 26 November 2009 indicating its view that the purported re-notification by the department on 13 October 2009 was not a valid re-notification…

   The above reasoning was the basis for its final decision at [25] (CB 104). However for re-notification to be invalid, the Minister’s decision must have been in excess of his power. It is submitted that the Minister’s decision is protected by the privative clause (s.474). Consequently, a jurisdictional error must exist before a decision is declared invalid. Mr Silva referred the Court to s.414(1) of the Migration Act 1958 (Cth) (“the Act”) which provides:

   (1)  Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision, the Tribunal must review the decision.

4. Mr Silva argues that this legal provision which determines whether a valid application has been made and importantly the Tribunal does not have the power to determine whether an application was validly made. The Tribunal’s decision to deny itself jurisdiction to deal with the applicant’s review application and this was due to a misunderstanding of s.66 and therefore Mr Silva submits that the Tribunal’s error is jurisdictional. Mr Silva contends that the Minister’s act of re-notification complied with the three Hickman conditions and therefore there was no other reason for error in the Minister’s decision to notify the applicant in 2009. Mr Silva referred to the Full Court decision in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 200 ALR 359 at 371 where the Court summarised the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth in the following passage:

   [6] The Parliament cannot abrogate or curtail the Court's constitutional function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution. However, in relation to the second aspect of that function, the powers given to Parliament by the Constitution to make laws with respect to certain topics, and subject to certain limitations, enable Parliament to determine the content of the law to be enforced by the Court.

5. Mr Silva notes the following.

   a)There has been a bona fide attempt to exercise the power in question.

   b)The Minister (through the delegate) honestly believed that the applicant should be notified as the first notification was defective due to the decision in Pomare v Minister for Immigration & Citizenship [2008] FCA 458. It is immaterial whether the opinion the Minister held was wrong, as it was a bona fide attempt to exercise the power.

   c)The decision relates to the subject matter of the legislation.

   The title of s.66 states “notification of decision”. Therefore it is related to the subject matter of the decision to notify.

   d)The decision is reasonably capable of referring to the power.

   The decision to notify relates to the subject matter of the decision. It was done under s.66 which authorised the Minister to notify.

   Mr Silva argues that there was no basis for holding by the Tribunal that the Minister’s notification in 2009 was invalid. 

6. Mr Markus submits that the applicant’s submissions incorrectly address the Federal Court authority directly on point referred to in the Tribunal decision: Minister for Immigration & Citizenship v Abdul Manaf (2009) 111 ALD 437 per Sundberg J. In this the decision mentioned above, His Honour accepted the Minister’s submissions to the effect that in circumstances where the first notification letter is defective, a subsequent notification of the decision does not have any legal effect. Once the prescribed period within which a valid application has to be made has expired, the Tribunal no longer has jurisdiction to review the decision in question. A further letter from the Department “cannot confer on the Tribunal jurisdiction it does not have” at [28]. At [41] –[43] His Honour states:

   [41] The respondent relied on s 33(1) of the Acts Interpretation Act 1901 (Cth) for the contention that the requirement in s 66 of the Act that the minister notify an applicant of the decision whether to grant or refuse a visa can be exercised from time to time. That subsection provides:

   Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as the occasion requires.

   As I understood it, this provision was deployed in support of the contention that a subsequent notification could displace an earlier one.

   [42] Section 33(1) was mentioned in Bhardwaj. There the minister argued that the subsection does not confer any power to make a further decision, because the Act disclosed an intention to the contrary. The High Court held that once it was seen that the first decision was a nullity, the tribunal was required to revisit the matter because its duty remained unperformed. At [53] Gaudron and Gummow JJ said this was so “regardless of s 33(1)”. At [156] Hayne J said that s 33(1) did not require consideration because the tribunal had performed its duty only once, by the making of the second decision.

   [43] Whatever the scope of s 33(1), it cannot in my view operate in the way in which the respondent seeks to have it apply, namely to invalidate or cancel the legal effect of an earlier performance of a duty. The subsection says nothing about displacing the legal effect of an earlier exercise of power or performance of duty. That it does not have that effect is supported by the contrast provided by subs (3):

   Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.

Consideration of ground one

1. Section 66(1) of the Act requires that the Minister must notify “the applicant” of a decision to refuse to grant a visa. That person is identified in s.45 as the non-citizen who wants a visa. The way in which notification can be made for the purposes of s.66(1) is prescribed by a statutory scheme in ss.494A-494D of the Act. The purpose of that scheme is to cater for and to avoid particular circumstances and difficulties that may occur in determining when and how a document can be taken to have been served. These provisions are intended to achieve certainty in respect of the manner and timing of service for the purposes of the Act including s.66. The scheme avoids potential difficulties of language or in locating an applicant for a visa who may have changed address without notifying the new one and similar circumstances. If the Minister, or his delegate, issues one of the prescribed methods of service or giving notice, the applicant for a visa will be taken to have been served or notified in order that other mechanisms and procedures in the Act can then be enforced.

2. Relevantly, s.494B(1) of the Act identifies the purpose of the provisions, specifies the method of issuing notice that the Minister must follow and identifies the documents required by s.66. Sections 494B(2) and s.494B(3) are not relevant considerations in this matter.

3. Critically for the present purposes the Minister, or their delegate, could date the document and despatch it in order to comply with s.494B(4) of the Act. This provision requires that the document, once dated, is to be despatched within three working days of its dating, by prepaid post or other prepaid means (such as a courier) to either the last address of service by the applicant provided to the Minister, or the Department. The final method of service as stipulated in s.494B(5) is not relevant to this matter.

4. If one of the methods of service outlined in s.494B is enlivened, s.494C determines when a document would be deemed to have been received by the intended recipient. Importantly s.494C(4) states that if the Minister, or a delegate, gives a document to a person in Australia by dispatching it in the post under s.494B(4), the person is taken to have received the document seven working days after its date. This prescribed time of service should be read with s.412(1)(b) so that the person then has a further 28 days in which to make an application for a review to the Tribunal.

5. Mr Silva argues that the Minister’s power to notify pursuant to s.66 is not limited to one notification and if the Minister forms a view that the applicant needs to be re-notified for whatever reason, the Minister can validly notify an applicant. The Department issued its notification letter of that decision by registered post on 5 December 2001. At that same time, a copy of that notification was forwarded to the applicant’s agent, Monica Celedon of Deans & Associates Liverpool.

6. On 16 July 2002, Harolds’ Migration Agency forwarded a letter to the Refugee Review Tribunal on behalf of the applicant requesting a review of the delegate’s decision and contains the following explanation for late lodgement:

   The applicant has advised me that she was not able to lodge her review as due to her financial circumstances / hardship.  She had difficulties in meeting the financial commitments with her previous migration agent, Monica Celedon and as such she did not go back to her previous migration agent and her review application was not lodged within the prescribed period.  (CB 51)

7. The application for review is date stamped by the Tribunal as being received on 22 July 2002 (CB 52).  On 31 January 2003, the first constituted Tribunal held that it did not have jurisdiction to review the delegate’s decision because the review application was received outside the prescribed time limit.

8. Subsequently, on 13 October 2009, the Department provided the applicant with a notification letter containing the delegate’s decision made on 5 December 2001 to refuse to grant the applicant a Protection visa.  It is submitted by the applicant that this was in effect a re-notification advising the applicant that she had 28 days in which to seek a review by the Tribunal and this in effect cancelled the first notification letter.  Mr Silva advocates that the Minister is not limited to one notification.

9. In Minister for Immigration & Citizenship v Abdul Manaf (supra), His Honour Sundberg J considers the legal principles of sending a second notification letter and the effect on the validity of the notification that has already occurred. His Honour at [21]-[23] states:

   21. Section 494C is a statutory deeming provision. It does not create a rebuttable presumption that notification has occurred. Section 5(23) of the Act provides that:

   To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.

   In Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13]-[14] the Full Court said:

   Section 494C(4) does not purport to create a rebuttable presumption of fact.  It provides that in certain circumstances, a person is to be “taken to have received the document…” Nothing in the section suggests that this is merely a rebuttable presumption…

   Spender J, in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657; (2004) FCR 550 at [69] observed:

   The person is “taken to have received the document”, in circumstances of this case, seven working days after the date of the document.  In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification.  There is nothing to indicate that the effect of the subsection is to be read as there was a proviso that the person was not taken to have received the document where the document had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.

   We agree.  The sequence of statutory and regulatory provisions to which we have referred prescribes with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application.

   23. Other recent decisions are to the same effect: SZBMF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1427; (2005) 147 FCR 485; Kim v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 64; SZJUA v Minister for Immigration & Cultural Affairs [2007] FCA 1184.

1. His Honour makes the following observation in respect of the statutory interpretation of the notification provisions of the Act at [32]-[35]:

   [32] Subsection (7) was introduced by the Migration Amendment (Notification Review) Act 2008 (Cth) (the Amending Act) and came into operation on 5 December 2008 so as to apply to documents given by the minister after that date. Accordingly, it does not apply to the present case. The respondent’s argument was that if the circumstances before the court were to arise again under the amended legislation, a court or tribunal would find that the second notification letter was defective and would have the effect of cancelling or invalidating the first notification letter. On that approach the minister has made an error in giving a document to the respondent in accordance with a method specified in s 494B, but the respondent nevertheless received it on 12 February 2008. She is thus taken to have received the document at that time. The time within which to apply to the tribunal would run from that date. Because of this

   111 ALD 437 at 444

   change in the law, the respondent says that the issues raised are no longer matters of public importance, and I should not write a judgment about them because “Parliament has moved on”.

   [33] The explanatory memorandum to the Bill which became the Amending Act explains that the notification provisions in the Act and regulations are highly prescriptive and create fertile ground for the courts to find defects in notifications. Technical errors can be relied on by those seeking to delay the resolution of their cases despite no apparent prejudice flowing from the defect. The memorandum gives examples of defects, including the use of the wrong postcode, where the document is nevertheless received by the addressee. The memorandum identifies two key changes to the notification regime:

   • Provide that substantial compliance with the required contents of a notification document is sufficient unless the recipient is able to show the error or omission in the document causes them substantial prejudice.

   • Provide the deemed time of notification provisions will operate despite non-compliance with a procedural requirement for giving a document to an individual where the individual has actually received the document unless the individual is able to show they received the document at a later date in which case they will be taken to have received the document at that date.

   [34] In explaining the point of s 494C(7), the memorandum states that the new subsection:

   … relates to the deemed receipt of a document that contains a minor or insignificant error. It provides that a person is taken to have received a document at the times mentioned in s 494C even if the document, the envelope containing the document or any accompanying material, contains an error or omission that is minor or insignificant, unless the person can show that the error or omission substantially prejudices him or her.

   [35] The viability of the second discretionary consideration depends on the soundness of the contention that the second notification letter negates the effect of the first. As I have said at [28], the minister’s argument to the contrary is much stronger than the respondent’s argument in support of denying the extension of time. What I have said there is applicable to this discretionary consideration.

2. Re-notification where previous notifications are not deemed invalid cannot be permitted in light of the intention of statute.  The principle of functus officio is central to this reasoning which is based on the policy ground of finality.  This principle is explained in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 at [8]:

   The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is an important consideration.

   In Sloane v Minister for Immigration, Local Government & Ethnic Affairs (1992) 28 ALD 480 at 483 per French J:

   The implication into an express grant of statutory power of a power to reconsider its exercise would be capable, if not subject to limitation, of generating endless requests for reconsideration on new material or changed circumstances.

3. The Full Court in Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240 at [55] stated:

   [55] The parties do not suggest any error in the statement of principle adopted by Finn J in order to determine when, for the purposes of the application of the doctrine of "functus officio", a decision has been made. To quote his Honour, at para19 and para20:

   "19. For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.

   20. What constitutes such an act can obviously vary with the setting in which the decision is made; it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision's having been made, etc".

   [56] His Honour then made reference to relevant provisions of the Migration Act. S430 sets out the procedure which is to be followed where the Tribunal "makes its decision on a review" (s430(1)). It is unnecessary to set that provision out fully. It required a written statement of reasons to be prepared and then, within 14 days from when the decision is made, the RRT must "give" (s430(2)) a copy to both the applicant and "the Secretary".

4. I have formed the view that the contention being advanced by Mr Silva in the circumstances of this matter is contrary to the intention of the Act. In ground two, the validity of the first notification and Tribunal decision are considered in detail and does not support the validity of the issue of the second notification letter.

Ground two

1. Mr Silva claims that the applicant was not validly notified of the delegate’s decision, made on 5 December 2001, as to information about where to lodge a review application.  Details regarding the strict timeframe were not included in the notification letter and Mr Silva suggests that there is no evidence that such information was enclosed.  The Departmental file does not include a copy of the information memorandum nor does the Court Book contain a copy.  The notification letter dated 5 December 2001 contains the following information:

   Review Rights

   As you have been refused a Protection visa, you may apply to have this decision reviewed by the Refugee Review Tribunal (“RRT”).  Information about applying for a review is included with this letter.  Please note that there are time limits on applying for review. 

2. In the body of the letter, the Tribunal’s address is not provided and nor is there any reference to the registry.  At the end of the letter (CB 44) there is a reference to “enclosure”.  However, a leaflet referring to the Tribunal is not mentioned.  Mr Silva draws the Court’s attention to the authorities that specifically mention the Tribunal pamphlet but there is no such reference contained within the notification letter.

3. Internal correspondence regarding the re-notification appears at CB 93 which states:

   You are correct in your assessment of a client as Pomare affected for the following reason:

   The notification letter to the client must either specify the address of the body of the letter or specifically mention the leaflet to cover the … issue.  The words “information about applying for review” is included within this letter” do not adequately cure Pomare. Due to this being absent, the client needed to be renotified of the decision and the 28 day clock will be reset.

4. Mr Silva notes that although the initial notification letter is contained in the Departmental records, there is no copy of the enclosure.  Consequently, Mr Silva asks the Court to infer that the enclosure was not enclosed with the original letter.  Mr Silva also contends that the applicant gave evidence that she was told by two officers, initially by telephone and later at the counter at the Department, that she was not sent the initial decision letter.  Mr Silva argues that this evidence by the applicant indicates that she misunderstood both communications in that what she was being told was not that the letter had not been sent but rather that the attachment was not sent. 

5. Mr Markus objected to this submission on the grounds that there was no evidence to this effect.  Mr Silva stated that the applicant gave evidence about the officers telling her a document was not sent and as she is not fully conversant with the English language, the Court should infer that the information memorandum about the review process was not enclosed.

6. Mr Silva relies on the decision in Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327 per Allsop J where His Honour was dealing with a case where His Honour accepted that the leaflet was not included with the notification letter. At [62] His Honour states:

   [62] It was not disputed that if there was a failure to comply with s66 there had been no initiating of time running against the applicant.

7. At [66] His Honour continues:

   [66] The scheme of the Act and regulations is such as to place the risk of postal delays on applicants. The consequences of that are reflected in the facts of this case. Neither the Court nor the Tribunal is empowered to give any extension of time. Parliament, as part of this scheme, requires the Minister or his delegate to provide sufficient information to the applicant to facilitate the timely filing of an application for review directed to the relevant subject matter. One aspect of that is the requirement to tell the applicant where he or she is to go to make an application. If the registries of the Tribunal had been identified in the phone book it may be that the letter was adequate. I have some doubts about that, but , with no assistance given to the applicant as to the location of the registry of the Tribunal in communication or the phone book, I do not think the delegate has stated in the communication "where" the application may be made.

   Mr Silva contends that in circumstances where the leaflet was not enclosed providing clear information as to where to file, s.66 will not be satisfied.

8. Evidence reveals that the applicant provided the migration agent with the material from the Tribunal which the migration agent retained.  The applicant did not retain a copy of the documents.  Therefore there is no evidence that determines whether if the leaflet was enclosed that it provided information, including the street address of the Tribunal and a timetable informing the applicant of his appeal rights.  Mr Silva referred to Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 per Jagot J, which addressed the question of whether a Tribunal leaflet had been included with the notification letter sent to the applicant (as the matter before this Court). A case officer gave evidence about the practise she adopted when issuing notification letters and maintaining correspondence filing. Based on that information, Her Honour held that the pamphlet or leaflet was enclosed in the notification letter.

9. Singh v Minister for Immigration & Anor [2010] FMCA 305 concerns a matter with a close factual similarity to the matter before this Court and concerned two valid notifications. In Singh, the notification was forwarded to the migration agent at his post office box but the agent requested the Department to forward the notification to his street address.

10. Mr Silva submits that the authority he relies on to advance his case is found in H v Minister for Immigration & Multicultural Affairs [2002] FCA 126 per Lee, Carr and Finkelstein JJ and specifically [9] where their Honours stated:

    [9] When the case came on for hearing before the tribunal, it decided that it could not determine the application, taking the view that it had been commenced out of time. The tribunal acted on the assumption that the only relevant dates were, first, the day on which the appellant was personally handed notification of the delegate's decision (26 or 27 October) and, second, the date on which the application for review was lodged (8 November). If these were the relevant dates, the tribunal correctly declined jurisdiction. But the tribunal fell into error because it paid no regard to the notification sent to the migration agent. On the basis of this notification, there are two alternative bases for concluding that the application for review was within time. The first is that the notification to the migration agent was the only relevant notification of the decision, so that the application for review could be lodged at any time before 14 November. This approach assumes that once the Minister first notified the appellant of the decision, that exhausted the Minister's obligation under s66. If that be correct, any further "notifications" (for example, by personally serving the appellant with a copy of the decision), would not be notifications under the statute and would have no legal consequence. The second basis for holding the application to be within time assumes that the second notification cannot be ignored, and that it brought into operation a second timetable within which the applicant could file a notice of review. In that event the applicant has been given two inconsistent timetables within which to make application for review and, in the absence of any statutory basis for giving one priority over the other, the appellant was entitled to choose the timetable that best suited him. That is what occurred in this case, albeit the appellant did not know he was making a choice.

11. Mr Silva indicates in “H” that the applicant and the migration agent were notified.  The notification was personally hand delivered on

    
    

    27 October.  On the date of notification being 8 November, the Tribunal correctly declined jurisdiction because the review application was commenced out of time.  However, if the relevant date was

    
    

    2 November being the date that the migration agent was deemed to have received notification and the review application was lodged on

    
    

    8 November then the review application was within time.  The first approach to relevant dates assumes that once the Minister first notified the applicant of the decision that exhausted the Minister’s obligation. 

12. The second basis for determining the relevant dates assumes that the second notification to the migration agent – deemed receipt date cannot be ignored and that has brought into operation a second timetable within which the applicant could file a notice of review.  In that event the applicant had been given two inconsistent timetables within which to make an application for review and in the absence of giving one priority over the other the applicant was entitled to choose the timetable that best suited him.  Mr Silva brought the Court’s attention to the Full Court decision in Zhang v Minister (supra) which did not endorse this line of argument.  At [25] their Honours stated:

    It is unnecessary to express any view in this appeal on the correctness or otherwise of the second of the two bases mentioned in H and in particular whether there can be two operative and effective notifications made.  In the circumstances of this matter two methods of notification were not utilised giving rise to “inconsistent timetables”.  Even if it was the case that the failed attempt to email the appellant on 2 March 2006 was intended to be a notification under reg 2.55, that form of notification was knowingly abandoned and the pre-paid post method alone was relied upon.  The course taken by the migration agent over a month later to obtain an email from the delegate cannot meaningfully be described as involving continuation of the process of notification by email begun on 2 March 2006.  There was by then no such process to continue.  Notification had long since been effected.  The appellant had attempted to act on it but was too late.  At best all that can be said of the email sent to the migration agent and the appellant was that, to use its own words, it provided them, by way of an attachment, with “the cancellation letter and decision record as requested”.  It was not purporting to be a reg 2.55 notification.  Unlike H’s case, the present was not one in which two methods of notification were utilised.

13. Mr Silva submits that the above Full Court authority provides for various forms of notification and it is submitted that it seems to endorse that there can be more than one notification. Therefore, if the applicant has been notified again, even if the first notification is valid (which Mr Silva does not concede), the second notification would give another opportunity to apply. Pursuant to s.66 of the Act, there is nothing within that section that prevents the Minister from notifying an applicant a second time if the Minister forms the view that it is necessary.

14. Mr Silva addresses the circumstances where the first notification did not result in a valid application to the Tribunal.  There are several decisions which look at the consequences of a failed notification.  In SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79, His Honour Emmett J at [27] and their Honours Buchanan and Nicholas JJ at [65]-[67] emphasised the point that practical consequences are to be looked at. Mr Silva contends that in the matter before this Court, the first appropriate notification did not result in the applicant being able to lodge a valid application.

15. Mr Markus, in his written submissions, submits that whilst it may be accepted that the issuing of the second “notification letter” on

    
    

    13 October 2009 was confusing to the applicant, and generally unhelpful, this does not relevantly assist the applicant.  Contrary to the applicant’s submissions, the question is not whether the “decision” to issue the notification was “valid” or “invalid”; the issue ultimately is the legal significance and effect of that letter.

16. Mr Markus submits that Mr Silva has asked the Court to draw an inference not only about the fact that the attachment was not enclosed but to also draw an inference that there was evidence from the Department to the effect that the brochure was not enclosed.  Mr Markus made an objection when this submission was made on the basis that such an inference is simply not available as it a substantially different inference from ultimately asking the Court to draw the inference that the leaflet was enclosed.  The inference that there is evidence to the effect that the Departmental officer made certain statements in the absence of any such evidence being given and in fact evidence to the contrary having been given.  It is not a course that the Court ought to entertain.  Mr Markus contends that Mr Silva is asking the Court to draw an inference about the information leaflet not being enclosed in the initial notification letter dated 5 December 2001 (CB 33-34).  That letter says it encloses the information leaflet and there is a reference to enclosure.  It is submitted that for the same reason that Her Honour Jagot J in Maroun v Minister for Immigration & Citizenship (supra) found that the leaflet has been enclosed, so should this Court. 

17. Mr Markus then referred to the alternative submission advanced by Mr Silva that if the Court finds the leaflet had been enclosed, then the Court should find that the leaflet did not satisfy the relevant statutory requirements.  Mr Markus submits that this contention is not supported by specific evidence however he refers the Court to the second Tribunal decision at para. [21]:

    [21] The Departmental file shows that, under the heading “Review Rights” the first notification letter states, as you have been refused a Protection visa, you may apply to have this decision reviewed by the Refugee Review Tribunal (RRT). Information about applying for review is included with this letter”. After the signature, the first notification letter includes the word “enclosure”. The version of the Tribunal brochure that existed at the time of the first notification letter was sent to the applicant, gave a street address and post office address for the Tribunal. The Tribunal is therefore satisfied that the notification applied with the requirements of s.66(2)(d)(iv) of the Act.

1. Mr Markus submits Mr Silva is inviting the Court to infer that the “enclosure” referred to in the Departmental letter dated 5 December 2001 (CB 43-44) was not enclosed.  In support of that contention

   
   

   Mr Silva relied upon two decisions.  Mr Markus submits that these two decisions can be distinguished on their facts.  In Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (supra), there was a factual finding made about the question whether the leaflet was contained and that it contained the relevant information. His Honour Allsop J at [64] stated:

   I also base my conclusion upon par 66(2)(d)(iv).  That requires the respondent to state whether the application for review can be made.  The word “state” not “specify” is used.  Nevertheless, the purpose is to give information as to whether the applicant can “make the application”, that is, initiate it.  The applicant was told lodgement had to be at “a registry of the Tribunal”.  No address was given.  A leaflet giving that information was not included with the letter and the decision record.

2. Mr Markus submits that in Maroun v Minister for Immigration & Citizenship (supra) that ultimately the judgment favours his client.  He believes it is important to draw to the Court’s attention that at para. [13] there is a reference to the fact that :

   … The court book showed that the letter had been returned to the sender. The envelope and letter both appear in the court book but the Tribunal leaflet does not. The Minister had not explained the absence of the Tribunal leaflet from the court book. The obvious inference is that the Tribunal leaflet was not enclosed. The appellant asked the Federal Magistrates Court to draw that inference having regard to these matters and Jones v Dunkel (1959) 101 CLR 298. The Federal Magistrate, however, did not address this submission. Alternatively, no inference can be drawn that any Tribunal leaflet that was enclosed notified the appellant of all places “where the application for review can be made” as required by s 66(2)(d)(iv) of the Migration Act. By analogy to Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841 a notice has to identify all places where an application for review can be made.

3. Mr Markus argues that Maroun can be factually distinguished from this matter.  In this matter, there is no suggestion that any letter has been returned to the Department.  Evidence has been led to show that the applicant claims that she never received the initial notification.  However, there is no evidence that the letter has been returned to the Department and there is nothing in the Court Book bundle of relevant documents that suggest that it has been returned.  The initial Tribunal set out the requirements of the notification of the delegate’s decision and the following criteria:

   If an applicant has notified the Minister in writing that he or she has authorised another person (the “authorised recipient”) to receive documents in connection with matters arising under the Act or Regulations, the Minister must give the authorised recipient, instead of the applicant, any documents that the Minister could otherwise have given to the Applicant:s.494D(1) of the Act. If the Minister gives a document to the authorised recipient, the Minister is taking the documents to the applicant: s.494D(2) of the Act. However, this does not prevent the Minister giving the applicant a copy of the document.

   Subsection 66(2) of the Act provides that notification of a decision to refuse a visa must contain certain information about why the visa was refused and, if there is a right of review, how to apply for a review of the decision.

4. The decision record under the heading “Reason for decision” states:

   The Tribunal is satisfied that the contents of the delegate’s decisions notice complied with the requirements of s.66(2) of the Act. The Notice was dated 5 December 2001.

5. Mr Markus submits that the relevance of the finding is twofold.

   a)There is no reason to depart from that finding unless there is some basis to suggest that inference ought not to be drawn.

   b)The first Tribunal made specific factual findings about the content of the leaflet and there is no evidentiary basis for the drawing of an inference contrary to the specific findings of the first Tribunal.

Consideration of ground two

1. I note that this application was filed on 31 August 2010 and the first court date directions hearing was held on 19 October at which time I granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 19 October 2010.  Mr Silva, representing the applicant, availed himself of that leave and filed an amended application on 15 November.  However, at the commencement of the hearing on 20 December 2010, leave was sought to file a further amended application abandoning the previously pleaded ground two and replacing it with a new ground. 

2. I acknowledge the submissions made by Mr Markus that as the issues raised in the new ground two filed at the commencement of the hearing, there could have been better evidence provided by the respondents by accessing their archive material and calling the appropriate officers responsible for the administration issuing decisions made by the Minister and his delegates.  That course was not followed by the solicitors for the respondent because they simply were not aware of the issue until the commencement of the proceedings in the formal hearing before this Court.

3. I also note that although Mr Silva in advancing ground two has not sought to have subpoenas issued or a Notice to Produce requiring the Department to provide a version of the document which is identified in the letter of 5 December 2001 as the “enclosure” or any officer of the Department to provide evidence of the procedures that were in place at that time dealing with the attachment of such “enclosures” in correspondence issued on this specific topic and the policy relating to the Departmental files recording that correspondence.  Mr Markus indicated that his client could have provided better evidence than they already have but they did not seek to do so because of the fact that it simply was not raised as an issue in the proceedings until the hearing commenced. 

4. The further complication arises out of the fact that Mr Silva seeks to challenge the second Tribunal decision but not the first.  The first Tribunal decision held that it did not have jurisdiction in the context of the original notification.  In so far as Mr Silva is seeking to rely on ground two, he is indirectly seeking to challenge the first Tribunal decision as well.  That course of action raises additional difficulties in so far as any extension of time application is concerned there has not been any explanation in terms given for the applicant’s failure to challenge that particular decision.

5. The second Tribunal decision clearly states the issue before it as:

   3. On 22 July 2002, the applicant applied to the Tribunal, differently constituted (T1), for review of the delegate’s decision.  On 31 January 2003, T1 made a decision that it did not have jurisdiction to review the decision refusing to grant the applicant a Protection visa because the review application was received outside the mandatory time limit and was not a valid application.

   4. The Department purported to re-notify the applicant of the primary decision by a further letter to the applicant dated 13 October 2009, which was delivered by hand on 13 October 2009.

   5. The applicant applied to the Tribunal on 5 November 2009 for a review of the delegate’s decision.

   6. The question arises in this case whether the Tribunal has jurisdiction. Whether it does depends on whether the first notification letter was valid notification under s.66(2)(d) of the Act.

6. The findings of the second Tribunal are set out above with the decision recorded as “the Tribunal does not have jurisdiction in this matter”. From the information contained within the Court Book, it appears that the notification complied with the requirements of the Act. In the original Protection visa application, a form 956 (CB 31) was attached nominating this Monica Celedon as the authorised person to receive communications from the Department and Ms Celedon consented to this course on 14 July 2001. The decision of the Department was forwarded by registered post to both the applicant and Ms Celedon on 5 December 2001. Those registered postal items were RP13716853 and RP13716854 respectively. The review application to the first Tribunal was received on 22 July 2002, with an accompanying letter from Harold’s Migration Agency dated 16 July 2002 (CB 51). The contents of that letter are reproduced above and it indicates the reason the review application with the Tribunal was filed out of time. That fact is clearly admitted in that correspondence. The consequence of the existence of the correspondence supports the decision of the second Tribunal that the first Tribunal had been validly notified and the Tribunal decision was made within the parameters of the legislation as it stood at that time.

7. What is at issue is whether the subsequent notification issued by the Department on 13 October 2009 has any effect.  The Department or some departmental officer has formed the view that the decision in Pomare v Minister for Immigration & Citizenship (supra) had adversely affected the sequence of events involving the initial notification of the delegate’s decision and the subsequent first Tribunal decision.  I note the submission made by Mr Silva above in relation to the decision in Singh v Minister but this is contrary to the material contained in the Court Book.

8. It is important to note that in Pomare, the applicant was provided with an incorrect postal address.  However, in this case the applicant submits that the ‘enclosure’ was not included with the Tribunal’s decision and the address and way to appeal the decision was therefore not provided to the applicant.  However, there is no evidence which shows that the ‘enclosure’ was not included and Mr Markus was not provided with the opportunity to lead evidence on this issue.  Furthermore, even if I was to accept the submission that the ‘enclosure’ was not included, the migration agent acting for the applicant was familiar with the review process and was in the position to proceed but was instructed by the applicant not to because of her financial position: Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 per Jagot J

Reopening

1. No formal application seeking to reopen this matter has been filed however on 23 December 2010, Mr Silva forwarded to the Court and Ms Warner-Knight of the Australian Government Solicitor correspondence which stated:

   Dear Associate

   The hearing in this matter was held on 20/12/10 and the decision was reserved by His Honour Lloyd-Jones FM.

   There has arisen an issue about the Fijian interpreter.  We therefore have filed this affidavit in the Registry.

   Attached was an affidavit sworn by the applicant dated 23 December 2010.  Accordingly the matter was re-listed for hearing on 21 January 2011.  At the commencement of that hearing, Mr Markus indicated that if the applicant’s affidavit had been filed in support of an application to reopen the matter then he formally opposed that course.  Mr Silva indicated that the intention of the affidavit was to bring to the Court’s attention that the interpreter present during the hearing on

   
   

   20 December 2010 did not correctly interpret what the applicant put to the Court.  Mr Silva requested that:

   a)the applicant is to be examined again so that she can give the correct version; or

   b)obtain a copy of the transcript from 20 January to review the evidence.

   I indicated to the Court that I had reviewed the transcript of the hearing on 20 December 2010.  The transcript reveals that there were a number of occasions when there was some concern about translation.  A review of the transcript, concerning the evidence given by the applicant in respect to how she became aware of the re-notification letter, was vague.  Her initial evidence was that she contacted the Department in early January 2010.  However when she was referred to a file note contained in the Court Book (CB), the applicant conceded that it was probably 15 January.  What prompted the applicant to make the initial phone call is not clearly apparent from the transcript.

2. Mr Silva indicated that the issue that needs to be clarified concerns the conversation that the applicant had with the Departmental officer who called her and what they said about the original notification letter dated 5 December 2001 (CB 43-44):

   a)that the notification letter was not sent to her; or

   b)the “enclosure” to the letter was not sent to her.

3. Whether the subsequent notification has any effect is a concern for this Court and was pursued by Mr Silva.  At some time in September or October 2009, the Department or some Departmental officer considered that the decision in Pomare v Minister for Immigration & Citizenship (supra) adversely affected the Tribunal decision. 

4. The second Tribunal expressly rejected the issue that Pomare applied.  Mr Markus indicated that at the commencement of the hearing in December, when the further amended application was sought to be filed, he objected on the basis that his client had not been notified of the new application which raised specific issues about the validity of the original notification.  That objection was withdrawn on the basis that Mr Silva indicated that the affidavit evidence that had been filed would be relied upon, subject to clarification by the applicant in relation to that evidence.  However the objection was maintained in respect to new evidence. 

5. In the applicant’s evidence in chief she sought to correct paras. 29 and 30 of her affidavit.  Subsequently Mr Silva in his submissions requested the Court to infer that despite what the applicant said something altogether different occurred.  Mr Markus argues that now the applicant has filed an affidavit which in effect requests the Court to accept that the applicant did actually say the very thing that Mr Silva requested the Court to infer despite what her sworn testimony was. 

   
   

   Mr Markus submits that if the applicant had given sworn testimony that she now claims she gave (which she now claims was misinterpreted) he would have objected to that evidence because it would have been not only new evidence but it would have been evidence that was directly opposite to her earlier evidence. 

6. In support of this contention Mr Markus referred the Court to the applicant’s letter to the Tribunal dated 7 December 2009 (CB 89-90) which states:

   …the officer had admitted that the decision made on 5^th December 2001 but was not mailed to me.  He then provided me on that date 13 October 2009 with a copy of the decision.

   In the affidavit sworn on 12 November 2010 and filed in Court on

   
   

   15 November 2010 at paras. 29 and 30 is to the same effect.  In the applicant’s evidence in chief:

   Mr Silva: Is there – any changes you want to make?

   Applicant: via interpreter – there are changes to numbers 29 and 30.

   Mr Silva: there are changes to paragraphs 29 and 30.  Is that what you say?

   Applicant (via interpreter): Just numbers 29 and 30.

   Mr Silva: Yes could you tell us what changes you want to para. 29?

   Applicant (via interpreter): In the letter that was sent to her from the immigration department they said that they had sent it but in fact they didn’t.  She didn’t receive any such letter.  The finding of that letter.  She said she did not receive any such letter.  That is 29. Number 29.

   (Trans 20.12.10 p8-9)

7. Mr Silva then read the contents of para. 29.

   Then suddenly a lady from DIAC rang me and told me “we have something for you.  We are opening your case for you to go to the Tribunal.  We found something for you.  It was our fault we never sent the letter in 2001.  Just come and show the passport to the counter. 

   This para. was read sentence by sentence to the applicant and each sentence was confirmed by the applicant as correct. 

   Mr Silva: So in this instead you wanted to make some changes.  What changes do you want to make here?

   Applicant (via interpreter): Just that they said that they sent the letter to her and she did not receive the letter.

8. Mr Silva adopted the same procedure in respect to para. 30 by reading each sentence which was confirmed by the applicant as being correct.  Para. 30 states:

   When I went a man at the counter told me “they found out that we didn’t send a letter in 2001.  I am sorry about what happened.  Now you can apply again to the RRT.  We opened the case for you.  Please forget about the past and tell the RRT about what the situation is in Fiji now.  He gave me a form and asked me to fill it out before 28 days and give it to the Tribunal. 

9. The transcript continues:

   Mr Silva now, in this, do you want to make any corrections or you are happy with what it is?

   Applicant (via interpreter): She wants some changes.

   Mr Silva: Please tell the Court.

   Interpreter: She wants some changes.

   His Honour: Yes

   Interpreter: She can’t really express what she feels as to why they did that, because they said one thing and then did another.

   Mr Silva: So the question is not an explanation.  What I’m asking is, what you state in paragraph 30, is everything correct.

   Witness (response in English without reference to the interpreter): Yes.

   Interpreter: Yes

Consideration of reopening

1. When the affidavit of the applicant sworn and forwarded to my Associate on 23 December 2010, it indicated that there had been errors in interpretation which the applicant wished to draw to the Court’s attention.  I formed the view that the most appropriate course to adopt was to re-list the matter to allow for these concerns to be ventilated before the relevant parties.  In adopting this approach, I was influenced by the fact that there had been several interruptions in the original hearing due to concerns in respect to the standard of interpretation.  Particularly, regarding case note 3933199 (CB 106) which was recorded on 13 January 2010.  That document was reviewed line by line so that the applicant was clear as to its contents.  There were a number of other incidents indicating concern about the translation.  I indicated to the interpreter on several occasions that she should interpret exactly what was being said and not try to anticipate some other aspect or anticipate what the next question may be or try to assist the applicant in any way to give her evidence.  I requested the interpreter to relay to the applicant exactly what Mr Markus was putting to her and to respond with exactly what the applicant’s reply was to the question and not to undertake any additional steps.  Consequently, when I read the affidavit, I relisted the matter to hear what those concerns were.

2. I indicated to the Court that I had read the affidavit and the transcript of 20 December.  I have marked certain sections where there had been discussion in respect to interpretation and concern with the applicant’s responses.  The applicant requested that paras. 29 and 30 of her affidavit sworn 12 November be altered, but ultimately they remained unchanged. 

3. The transcript of the hearing on 20 December only records the parts that were in English.  The only source of what was said in Fijian would be on the recording of the hearing and that would have to be reviewed by an independent Fijian – English interpreter to determine whether the interpretation was correct or not.  That process has not been requested.  Nor has anything been brought to my attention in the transcript that is available to indicate that what is recorded within that document incorrectly records what was said. 

4. At this point it is inappropriate to start to re-examine the witness because time has transpired and that has provided the benefit of review of the course of the evidence before the Court and re-examination could be different.  The only evidence that can be relied upon is what was said during the original hearing on 20 December.  It is inappropriate for the Court to re-open for it were to, it is likely that the new evidence would be entirely inconsistent with her earlier evidence which had been filed in accordance with the Court’s direction. 

1. The basis of the new affidavit goes to the question of whether the applicant had been told by the Departmental officer that the attachment to the initial notification in 2001 was not sent.  The applicant acknowledges that she both speaks and understands English and at various stages during her evidence responded to questions without the intervention of an interpreter.  When the applicant gave her evidence, she heard the interpreter’s response but did not speak up at the time about this error. 

2. The significant inconsistency with this new evidence is that the Departmental officers clearly formed a view about the application of Pomare v Minister for Immigration & Citizenship which did not focus on the issue that the “enclosure” was not attached to the letter but rather the references to the physical location of the Court registry recorded in the “enclosure” were not specific enough.  Ultimately the inclusion or absence of the “enclosure” does not advance the applicant’s case because the Departmental officers were in no better position than anyone else to know whether the brochure was enclosed.  They simply do not possess this knowledge. 

3. The applicant has intended that the contents of the new affidavit should be taken into account in my consideration of this judgment.  However, this matter has not been formally re-opened and I note that Mr Silva’s submissions indicate that it was not his intention to pursue this course.  I therefore have not considered this affidavit in preparation of this judgment.

4. If an application to re-open this matter was made, I accept Mr Markus’ submissions that the contents of the new evidence would be objected to on the grounds that it is in direct contradiction of the applicant’s earlier evidence and the contents of various correspondence that appears in the Court Book.  Consequently I declined the invitation to re-open the matter or accept the new affidavit evidence provided to the Court.

Conclusion

1. I am not satisfied that the grounds contained in the further amended application are satisfied and the application should therefore be dismissed with costs.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: 

Date:  1 April 2011