SZUUR v Minister for Immigration
[2015] FCCA 2532
•13 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2532 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant’s claiming political persecution in Bangladesh – applicants failing to attend Tribunal hearing – documents provided by the applicants inconsistently recording their address – what was their last address for service considered – whether the applicants received invitation to the Tribunal hearing considered – whether the result procedurally unfair considered. |
| Legislation: Migration Act 1958 (Cth), ss.53, 422B, 424A, 425, 425A, 441A, 441C, 441G Migration Regulations 1994 (Cth) |
| Minister for Immigration vSZIZO (2009) 238 CLR 627 SAAP & Anor v Minister for Immigration & Anor (2005) 228 CLR 294 |
| First Applicant: | SZUUR |
| Second Applicant: | SZUUS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2059 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 August 2015 |
| Date of Last Submission: | 25 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr B J Symons |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 23 July 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2059 of 2014
| SZUUR |
First Applicant
SZUUS
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 25 June 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The applicants are from Bangladesh and had claimed protection on the grounds of political opinion. Relevant claims were made by the first applicant. References in this judgment to “the applicant” or “the first applicant” are intended to be references to him. The following statement of background facts is derived from the submissions of the parties.
On 16 July 2013, the first applicant submitted an “Application for a Protection (Class XA) Visa” form to the Minister’s Department[1]. The residential address on this form, and therefore the postal address on this form, was incorrectly entered in that the street name was misspelt with the letter “R” missing[2]. It should be noted that the first applicant signed the application form with the correct address shown elsewhere[3].
[1] Court Book (CB) 1
[2] CB 2, item 16 and item 17
[3] CB 14, item 67 and CB 5, item 36
The second applicant appended to the first applicant's “Application for a Protection (Class XA) Visa” form a form entitled “Application for a member of the family unit”[4]. The second applicant's postal address effectively relied on the residential and postal address specified in the first applicant's form[5]. That address was incorrect but she gave the correct address in her declaration[6].
[4] CB 17
[5] CB 2, item 16 and item 17
[6] CB 22, item 31
The Minister's delegate made a decision to refuse to grant the first applicant and the second applicant protection (Class XA) visas and notified the applicants of this decision by a letter dated 6 December 2013[7].
[7] CB 48-65
The applicants sought review before the Tribunal on 23 December 2013[8]. The Tribunal acknowledged that application on 24 December 2013[9].
[8] CB 66-72
[9] CB 73-74
The applicants say that on 18 February 2014, they attended the Tribunal registry in order to lodge a Form 1022 “Notification of change in circumstances” form to add their daughter (born 19 January 2014). The form was handed to an attendant at the registry. The applicants did not have their daughter's birth certificate and were not able to file the form on this occasion. The applicants are unsure whether the attendant at the registry took a copy of the form[10].
[10] affidavit of first applicant dated 22 June 2015, page 2 and affidavit of second applicant dated 22 June 2015, page 2
The applicants returned to the Tribunal registry on 24 March 2014. They attended the registry on that day in order to provide certain documents to add their daughter to their applications. The applicants say that they submitted the following documentation to the Tribunal registry on 24 March 2014:
a)a cover letter dated 24 March 2014 signed by the first applicant explaining that he wanted to add his daughter to their application for a protection (Class XA) visa[11]. This document has been stamped as having been received by the Tribunal on 24 March 2014[12];
b)the birth certificate of the applicants' daughter[13]. This document has been stamped as having been received by the Tribunal on 24 March 2014[14]; and
c)a completed Form 1022[15]. This document is not stamped as having been received by the Tribunal. However, the applicants specifically recall delivering this document to the Tribunal on 24 March 2014 along with the other two documents specified in this paragraph[16].
[11] CB 79
[12] affidavit of first applicant dated 22 June 2015, page 2 and affidavit of second applicant dated 22 June 2015, page 2
[13] CB 78
[14] affidavit of first applicant dated 22 June 2015, page 2 and affidavit of second applicant dated 22 June 2015, page 2
[15] CB 75-77
[16] affidavit of first applicant dated 22 June 2015, page 2 and affidavit of second applicant dated 22 June 2015, page 2
It should be noted that the form that was allegedly provided by the applicants to the Tribunal registry on 24 March 2014 contained their correct residential and postal/correspondence address[17].
[17] CB 75, item 8 and item 9
The applicants received a letter from the Tribunal dated 24 March 2014 for the attention of Medicare to demonstrate that they had applications pending before the Tribunal in relation to protection visas[18]. Essentially, this letter demonstrated they should be entitled to access health services during the time that their applications for protection visas were being determined.
[18] CB 80
The Tribunal sent the first applicant a letter dated 22 April 2014 inviting the applicants to attend the Tribunal to give oral evidence at a hearing on 24 June 2014 in relation to the Tribunal’s review of their protection visa application[19]. The applicants assert that this letter was not received by the first applicant, the second applicant or the other two members of their household that had access to the letter box at their residence[20].
[19] CB 81-82
[20] affidavit of first applicant dated 20 April 2015, affidavit of second applicant dated 20 April 2015, affidavit of the first’s applicant’s brother-in-law dated 20 April 2015 and affidavit of applicant’s sister dated 20 April 2015
The Tribunal sent the first applicant a letter dated 30 April 2014. The letter informed him that the Tribunal did not have jurisdiction to include his daughter in the Tribunal's review of the delegate's decision[21]. This was because the applicants’ daughter had not been included in the original application. The applicants assert that this letter was not received by the first applicant, the second applicant or the other two members of their household that had access to the letter box at the premises[22].
[21] CB 83-87
[22] affidavit of first applicant dated 20 April 2015, affidavit of second applicant dated 20 April 2015, affidavit of the first’s applicant’s brother-in-law dated 20 April 2015 and affidavit of applicant’s sister dated 20 April 2015
The Tribunal informed the applicants by letter dated 25 June 2014 that it had affirmed the decision of the delegate of the Minister not to grant the applicants protection (Class XA) visas[23]. It was clear from the attached reasons the Tribunal gave for making its decision that the failure of the applicants to attend the hearing at the Tribunal had a substantial impact on the Tribunal’s decision to affirm the delegate's decision not to grant the applicants protection (Class XA) visas[24].
[23] CB 89
[24] CB 93-94
The applicants sought judicial review of the decision of the Tribunal dated 25 June 2014 in this Court on the basis that the Tribunal had denied them procedural fairness. The applicants maintained that they had been denied procedural fairness on the basis that the Tribunal had sent a letter dated 22 April 2014 inviting them to attend a hearing of the Tribunal on 24 March 2014 to give evidence in relation to their applications for protection (Class XA) visas to the wrong address.
The judicial review application
These proceedings began with a judicial review application filed on 23 July 2014. The grounds in that application are:
1. The applicants did not receive the hearing invitation letter dated 22 April 2014 referred to by the Tribunal in paragraph 7 of its decision. Either:
a) The Tribunal did not send the letter, or did not send the letter to the correct address. This is a jurisdictional error.
b) Alternatively, even if the Tribunal sent the letter to the correct address, the Tribunal should have taken further steps to:
i. bring the hearing to the applicants’ attention, such as phoning the applicants to confirm they received the hearing invitation letter; or
ii. obtain further information from the applicants concerning their claims.
The Tribunal’s failure to take such further steps involves jurisdictional error.
On 22 April 2015 I ordered the Minister to show cause why relief should not be granted in relation to Ground 1(a) of the application. I provided the opportunity for the parties to file additional affidavit evidence.
Further affidavit evidence was filed. In addition to the court book filed on 5 September 2014, I received the following affidavits:
a)the affidavits of the applicant made on 20 April 2015 (filed on 4 August 2015) and 22 June 2015 (filed on 30 June 2015);
b)the affidavits of the second applicant made on 20 April 2015 (filed on 22 April 2015) and 22 June 2015 (filed on 15 July 2015);
c)the affidavit of the first applicant’s sister made on 20 April 2015 (filed on 22 April 2015);
d)the affidavit of the first applicant’s brother-in-law made on 20 September 2014[25];
e)the affidavit of Robert Alan Cook made on 26 June 2015 (filed on the same day); and
f)the affidavit of Mikhail James Glavac made on 14 April 2015 (filed on the same day).
[25] incorrectly dated 2015 (filed on 22 April 2015)
I also received the following exhibits:
· R1 – photographs of house;
· R2 – letter from Minister’s solicitors to applicant, 05.09.2014.
The applicants were cross-examined on their affidavits.
The applicants and the Minister both made pre-trial submissions in writing. I invited post-trial submissions from the parties in light of the evidence adduced at the trial. Those submissions were exchanged and filed on 25 September 2015.
Consideration
Applicants’ contentions
The applicants’ case is that the Tribunal sent a letter dated 22 April 2014 inviting them to give evidence at a hearing in relation to their visa applications to the incorrect address[26]. The correct address was allegedly notified to the Tribunal in the Form 1022 “Notification of Change of Circumstances” on 24 March 2014. The applicants’ case is that the error made by the Tribunal meant that the deeming provision in s.441C(4) of the Migration Act did not operate to deem that the hearing invitation letter was received by the applicant. This resulted in the decision of the Tribunal on 25 June 2014 being infected with jurisdictional error because of a denial of procedural fairness.
[26] that is, with the street name missing the letter “R”
The applicants submit that the extent and the consequences of the departure from the notice requirements in Part 7 Division 7A of the Migration Act 1958 (Cth) (Migration Act) must be considered in determining whether a failure by the Tribunal to adhere to the notice requirements in those sections has rendered the notice invalid. These principles were laid down in the High Court case of Minister for Immigration vSZIZO & Ors[27]. In that case, the Tribunal had failed to properly serve a notice on the person that the applicant had nominated as the “authorised person” to receive correspondence in relation to their matter on their behalf. However, the applicants in that case still managed to attend the hearing and provide an effective response to the notice. The High Court ultimately held that there was no denial of procedural fairness because, although there had been a departure from the notice requirements in Part 7 Division 7A of the Migration Act, there was no practical injustice in that case. The High Court stated:
While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441Awould discharge the Tribunal's obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal's omission and they do not take issue with the Full Court's characterisation of the result in the circumstances as being “rather absurd”. The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing. In a case in which the Tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the Tribunal complied with the statutory procedures. No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case.
Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the Tribunal's jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.
While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the Tribunal's obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal's omission and they do not take issue with the Full Court's characterisation of the result in the circumstances as being “rather absurd”. The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing. In a case in which the Tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the Tribunal complied with the statutory procedures. No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case. (footnote references omitted)
[27] (2009) 238 CLR 627
The earlier Full Federal Court case of SZLBR v Minister for Immigration[28] considered whether a notice sent to an applicant that had an incorrect postcode could amount to jurisdictional error. In that case, the notice was sent to the correct number and street address, but with an incorrect postcode. The postcode was stated to be 2000 instead of the correct Surry Hills post code of 2010. The applicant received the notice in spite of the incorrect post code and attended the hearing at the Tribunal. The Court found that because there was no practical injustice this would not amount to jurisdictional error. The Court did not decide the point on whether a letter sent to the incorrect address of the applicant would amount to a denial of procedural fairness.
[28] [2008] FCAFC 85
Recent High Court authority discussing the issues of procedural fairness
The applicants note that the High Court has emphasised in recent decisions on migration cases the importance of the Tribunal complying with the provisions in Part 7 of the Migration Act.
The case of SZFDE v Minister for Immigration[29] was a unanimous joint judgment of the High Court that was at pains to emphasise the importance of compliance with the provisions of Part 7 of the Migration Act in the context of affording an applicant procedural fairness. SZFDE was a case that concerned a man who purposed to be a migration agent who had deceived his clients and dissuaded them from attending a hearing of the Tribunal that they had been invited to pursuant to s.425 of the Migration Act. The unanimous joint judgment of the High Court held that the actions of this man constituted a fraud on the Tribunal with the consequence that the applicants were denied procedural fairness because it could not be said that s.425 of the Migration Act was complied with by the Tribunal. It important to note the following statements made by the unanimous joint judgment:
The importance of the requirement in s 425 that the Tribunal invite the applicant to appear to give evidence and present arguments is emphasised by s 422B. This states that Div 4 “is taken to be an exhaustive statement of the requirement of the natural justice hearing rule in relation to the matters it deals with.” Added to Pt 7 Div 4 by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth).
An effective subversion of the operation of s 425 also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review. Given the significance of procedural fairness for the principles concerned with jurisdictional error, sourced in s 75(v) of the Constitution, the subversion of the processes of the Tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act.[30]
As indicated earlier in these reasons, the provisions of Pt 7 obliging the Tribunal 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 (s 425(1)) and empowering the Tribunal to make a decision on the review in the absence of an appearance (s 426A) are of central importance for the legislative scheme laid out in Div 4 of Pt 7 (ss 422B‑429A) for the conduct of reviews. By s422B that Division provided that it is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule.[31] (footnote references omitted)
[29] (2007) 232 CLR 189
[30] SZFDE at 201
[31] SZFDE v Minister for Immigration (2007) 232 CLR 189 at 205 and 206
The case of SAAP & Anor v Minister for Immigration & Anor[32] is said to be another example of how seriously the High Court takes compliance with the obligations in Part 7 of the Migration Act to ensure that applicants are accorded procedural fairness. In that case, the elder daughter of the applicant gave evidence to the Tribunal by video link from Woomera Hospital in South Australia. Some of the evidence she gave was adverse to the applicant. The Tribunal then affirmed the decision of the Minister’s delegate that the applicant should not be granted a protection visa. The applicant appealed and the case eventually came before the High Court. The applicant pressed that pursuant to s.424A of the Migration Act she should have been given notice in writing of the adverse evidence of her daughter.
[32] (2005) 228 CLR 294
McHugh J observed[33]:
If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no “partial compliance” with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act.
[33] SAAP at 321
Kirby J said[34]:
Nevertheless, is breach of s 424A sufficient to establish jurisdictional error necessary for relief in this case? Because of the mandatory language of s 424A (“must”) and the provisions of Pt 7, Div 4, I agree with Hayne J that the breach is sufficient to constitute jurisdictional error, as that opaque expression has been interpreted. An imperative obligation for the conduct of a review by the Tribunal has not been complied with. (footnote references omitted)
[34] SAAP at 345 and 346
The applicants submit that the above authorities demonstrate that the High Court has taken a strict approach towards compliance with the provisions of Part 7 of the Migration Act in relation to whether applicants are afforded procedural fairness.
With this background, the applicants contend it is strongly arguable that a notification sent to an incorrect address would amount to jurisdictional error for a denial of procedural fairness.
Application of above principles to the applicants’ case
In relation to the facts of the applicants’ case, the applicants contend that, while the mistake in the street address may have been small, the consequences arising from an incorrect address were “catastrophic”. This was because the first applicant failed to receive notice of the Tribunal’s hearing and therefore failed to attend the hearing. The Tribunal did not therefore receive oral evidence from the first applicant on the following issues:
a)the applicant’s involvement with the Bangladesh Nationalist Party (“BNP”) since 1999, including both its youth and student wings[35];
b)the applicant’s claim that he was attacked in December 2011 and hospitalised for seven days[36];
c)the applicant’s claim that Awami goons came to his house on 27 February 2009 and attacked his brother, as the applicant was not at home[37];
d)the applicant’s claim that he had lived and worked at the same address from March 2009 until he came to Australia in May 2013, and why members of the Awami League were unable to find him if he remained substantially living and working in the same places throughout this time[38];
e)the applicant’s claims that false charges had been laid against him by the police for his involvement in a BNP procession in December 2011 and how he managed to depart Bangladesh in May 2013 if these charges were still pending against him[39];
f)why the applicant had waited until August 2012 to apply for a sponsored family visitor visa given the difficulties that he claimed to have faced in Bangladesh.
[35] CB 93 at [12] and [13]
[36] CB 93 at [13]
[37] CB 93 at [13]
[38] CB 93 at [15]
[39] CB 93 at [16]
The Tribunal was unable to receive further oral evidence in order to substantiate the applicant’s claims in relation to the matters outlined above because the applicant did not receive notice inviting the applicant to give evidence on these matters on 24 June 2014. In the absence of this evidence, the Tribunal was “compelled” to make an adverse finding against the applicant in respect of these matters. This lead the Tribunal “inexorably” to the conclusion that the applicant would not be at a significant risk of harm if he returned to Bangladesh and a decision not to grant the applicant a protection visa. The second applicant submitted no claims of her own and therefore her case depended on the case of the first applicant. The second applicant’s case for a protection visa therefore similarly failed.
In summary, the applicants contend that the Tribunal failed to send the notice inviting the applicant to attend a hearing of the Tribunal on 24 June 2014 and give evidence to the correct address. Although the mistake the Tribunal made in the address was small, this had catastrophic consequences for the first applicant because he was denied an opportunity to give oral evidence in relation to the matters specified above. The failure of the Tribunal to send the invitation to the applicant therefore amounted to jurisdictional error for a denial of procedural fairness. As the second applicant’s case was dependent on the first applicant’s case, the decision in relation to the second applicant’s case was similarly infected by jurisdictional error.
Minister’s contentions
In summary, the Minister has submitted that:
a)the incorrect address was the “last address for service provided to the Tribunal by the recipient in connection with the review”, and engages the deeming provisions of the Migration Act such that the applicants are taken to have received the invitation issued on 22 April 2014 by reason of s.441A(4) and s.441C(4);
b)alternatively, if the correct address was the “last address for service provided to the Tribunal by the recipient in connection with the review”:
i)sending the Notice to the incorrect address, because of the trivial nature of the difference, was functionally equivalent to sending the letter to the “last address for service provided to the Tribunal by the recipient in connection with the review” such that the deeming provisions operated;
ii)alternatively, if there was an error in the way the letter was addressed, the Notice was nonetheless received and so good notice was given.
There is evidence relevant to all three points.
Submission 1 – last address for service
The “last address for service” provided by the applicants to the Tribunal was the incorrect address set out in the application for review to the Tribunal[40].
[40] CB 69 Q 13
The later “Notification of changes in circumstances” document[41] did not change the address for service. It does not do so expressly. Nor was it intended by the applicants to change the address for service[42]:
His Honour: …you say in your most recent affidavit that you handed in the additional form on 24 March 2014… to add your daughter.
[41] at CB 75
[42] Transcript (T) 33.19-24
…
The Witness: Yes.
Additionally, after lodging the “Notification of Change of Circumstances”, at the Tribunal, the applicant was given the letter at CB 80 which confirmed his address as the incorrect address. The Court asked the first applicant, “Okay. So is it correct then that you did nothing to correct that mistake at that time?”. He answered, “No”.[43]
[43] See T 34.14–23
All this evidence is said to point to the clear conclusion that the Notice did not, and was not intended, to change the address for service. The Tribunal was correct to write to the address given by the applicants as their address for correspondence.
Submission 2 – the difference was immaterial
The applicant accepted that he used the incorrect and correct addresses interchangeably in his visa application[44]. He received correspondence sent to the incorrect address. In fact, he appears not to have considered any difference between them when he filed the application in this Court, which still lists his address incorrectly.
[44] T 32.18
If the first submission is rejected, the case should not turn on which of the two interchangeable addresses happened to be put forward last.
Submission 3 – the letter was received
The Court should find that the letter was received because:
a)the evidence establishes that letters sent to the incorrect address were delivered to the correct address; and
b)the affidavit evidence put forward by the applicants to the effect that the letter was not received should not be accepted.
Letters were received
At the hearing, the applicant agreed that he had received the following correspondence which was addressed to the incorrect address:
a)a letter from the Department to the applicant inviting the applicant to attend an interview[45];
b)a letter from the Department notifying the applicants that their visa application had been refused[46]; and
c)a letter from the Tribunal to the applicant, acknowledging receipt of application[47];
d)a letter from the Tribunal notifying the applicants that the decision under review had been affirmed[48]; and
e)a copy of the court book sent by the Minister's solicitors to the applicant[49].
[45] CB 44, T 12.11-26
[46] CB 48; T 12.28-38
[47] CB 73; T 11.19-35
[48] CB 89; T 11.36-46 and T 12.1-5
[49] T 7, line 1 and T 36 lines 43-46. The letter serving the court book was addressed to the incorrect address - see Exhibit #MFIR3 letter from Clayton Utz dated 05/09/2015
Objectively, this evidence establishes that a letter sent to the incorrect address will be delivered to the correct address.
Mr Cook gave unchallenged evidence that the hearing invitation letter was dispatched by prepaid post to the incorrect address on 22 April 2015 and was not returned[50]. The Court should hold that the letter was delivered a few days later. Certainly, it can be inferred that it was delivered before 10 June 2015 (being 14 days before the hearing date, which is the last date for notice to be given under regulation 4.35D).
[50] See Affidavit of Robert Alan Cook filed on 26 June 2015 at [10], [16] and [20]
It follows by necessary inference that the hearing invitation letter was received by the applicant.
Applicants’ evidence should not be accepted
The applicants have relied upon six affidavits in these proceedings from four witnesses. By an agreement recorded at T2.17, only the applicants were cross-examined on the basis that no point would be taken as to the failure to cross examine the other witnesses.
The applicants’ evidence should not be accepted because, in summary:
a)first, all of the affidavits are plainly cut-and-paste copies of each other. That suggests immediately that they are unreliable to some degree. Moreover, it is clear, as the applicants’ ultimately accepted, that the evidence is really just the first applicant’s evidence[51];
b)secondly, neither applicant speaks English sufficiently well to understand the document they swore was true. They were translated by unaccredited translators whose expertise is not known, and who have not sworn that they gave a true translation;
c)thirdly, and regrettably, each applicant gave evidence that was unconvincing and self-serving, such that their evidence should be treated as unreliable.
[51] T 21.21–22.15, T 49.10
These three points are developed below.
Copy and paste
The Minister submits that one need only look at the affidavits for a moment to see that they are carbon copies of one another. Despite this obvious proposition, it took each applicant some time to accept that this was the case.
Ultimately, the first applicant accepted that his wife did not tell her story separately to someone who drafted her affidavit[52]. He accepted that she just signed his version of his affidavit[53]. Similarly, the second applicant also eventually accepted that this is what had happened[54]:
[52] T 21.24
[53] T 22.15
[54] T 49.7-10
Mr Hughes: …you were just given an affidavit to sign based on the evidence of your husband, isn't that correct? What's the answer?
Interpreter: Yes.
The second applicant's affidavit was clearly copied and pasted from the first applicant's affidavit. The clearest example is the fact that her affidavit contains the following line taken straight out of her husband’s affidavit without even the obvious changes: “I received an acknowledgment of my application that also included applications for my wife”.[55] (emphasis added)
[55] See T 42.35
The second applicant spent some time insisting, “unreasonably”, that this was not a mistake[56]. Even allowing for translation issues during cross-examination, this is the first of several examples where the second applicant clearly “dug in” to what she understood as the version of the facts that she had to give, regardless of its truth.
[56] T 24.45; T 43.26
The second applicant's affidavit evidence is further undermined by her uncertainty about other facts attested to in her affidavit. For example, she stated at [7] of her affidavit of 20 April 2015 that she had received the acknowledgment of application letter from the Tribunal. However, at the hearing, she was far less certain[57]:
Mr Hughes: And is that the letter that you say in paragraph 7 that you received?
Interpreter: I'm not really sure. I do not- I'm not really clear of all the paperworks. I don't remember very well, because this was in 16 and this was in 15 and this was in 13 and I don't remember quite well.
[57] T 44.3-8
The proper conclusion to draw is that the second applicant’s affidavit evidence (and likewise the cut and paste evidence of the other witnesses) adds no weight to the first applicant’s evidence. The second applicant’s evidence is only relevant where she contradicts her husband, tending to show that both should not be believed.
Translation issues
A further difficulty with the applicants’ evidence is that they signed affidavits written in English but do not speak English. They did not have qualified translators. The translation was done by family members without qualifications. Nor is there any evidence that the translations were done faithfully.
The first applicant said that he “understood some” of his affidavit, and “some of it was explained”[58].
[58] T 6.6
The second applicant accepted that “I can read but very poor”[59].
[59] T 41.40
This is a further reason why the affidavit evidence should be treated with caution.
Credibility issues
The Minister submits that both applicants had a tendency to give answers in cross examination that suited them because it might assist their case, rather than answers that were true. The following examples are the clearest.
First, the applicant was challenged about his affidavit evidence that he never saw a letter from the Tribunal in the month from 22 April 2015. He was asked how he knew this, and whether he knew this by looking at the envelopes that arrived in the mail, or if he opened letters. He gave a number of different answers.
In answer to a question from me, he said, “I usually do not open a letter unless my brother-in-law or my sister confirms where it has come from”[60]. He again confirmed this answer: “Usually we leave it on the table – sorry, kitchen table, and after confirmation of the source of the letter, I open it”[61].
[60] T 24.31
[61] T 24.35
That was unambiguous, but the witness soon saw the difficulty with this answer: it meant that one of his relatives might have received the letter but not confirmed to him where it was from. So he began to reverse course. First, he said that this only happened “sometimes”[62]:
[62] T 25.20
Mr Hughes: So you said earlier that you would only open correspondence if they had confirmed to you what it was. Do you remember saying that?
Interpreter: This is true, but sometimes, when I see my name, I open it.
A little later, the reversal was complete[63]:
[63] T 26.36
Mr Hughes:My question was, “Is there ever a time when you don't open a letter because you want your sister or your brother-in-law to tell you where it's from before you open it?”
Interpreter: No, it never happened like that.
This is critical, because it shows that the applicant was willing to change his evidence on its most important aspect, namely how he gets his mail. That casts doubt on all his evidence.
Secondly, both applicants gave evidence about how their residential post box came to be so wrongly described (and in identical terms) in their affidavits. At [12] of their near-identical affidavits of 20 April 2015, they both described the post box as being 2 metres x 1 metre in dimension. It is clear from Exhibit R1 that the mail box is nowhere near that size.
The applicant took a while to concede this[64]:
[64] T 16.12–37
Mr Hughes:I want to suggest to you that there's no way – I mean, that letterbox is not even close to being two metres in any dimension.
Interpreter: Maybe, but I did not think much about it.
Mr Hughes: But ‑ ‑ ‑
Interpreter: I just got the idea and I wrote it.
Mr Hughes: Do you agree with me now that it is not two metres in any dimension?
Interpreter: It would come from ground to up to waist level.
Mr Hughes:Please answer my question, sir. Do you agree with me now that it is not two metres in any dimension?
Interpreter: I think that the width of this box may be two metre.
His Honour: I think it's fairly clear to us, Mr Hughes, that the mailbox is considerably smaller, on the basis of the photograph and by reference to the affidavit.
Mr Hughes: Yes. Sir, was that an honest answer, that you really think that it is two metres in width?
Interpreter: I am not very sure, but since I did not measure it, it just an idea.
This passage makes clear that the applicant was not careful in giving his evidence. That is concerning given that he also accepted that [12] was one of the most important paragraphs in his affidavit[65]. The passage also demonstrates the applicant’s inclination to avoid making obvious concessions.
[65] T 17.40–46
Thirdly, both applicants gave contradictory evidence about how the same wrong dimension appeared in both of their affidavits. The first applicant said that he was with his solicitor and telephoned the second applicant to ascertain the correct dimensions[66]:
[66] T 22.24–42
Mr Hughes: The reason that she has said that the letterbox is two metres by one metre is because she has just signed your affidavit with some modifications.
Interpreter: When I was with my solicitor, I called her and she could not come because ..... And she said that it would be up to waist level, and then ..... Both of them – both of us, my wife and myself, said it is up to waist level. And from that basis I wrote it .
Mr Hughes: So do I understand that you’re saying that you – while this document was being drafted, you had a conversation on the telephone with your wife about the dimensions of the post box.
The Witness: Yes.
Mr Hughes: And in that she said that it was about waist height. Is that what you’re saying?
Interpreter: Yes. I asked her that it would – “Will it be about waist level?” She said, “Yes,” but she is taller than I am.
The second applicant told a different and contradictory story. She said that they had both physically gone to the letter box to work out its height, and that they only discussed its dimensions at home[67]:
[67] T 46.14 – T 47.45
Interpreter: My husband ..... my husband guessed it and he say it may be like this.
Mr Hughes:So these sentences in your affidavit are really your husband’s evidence, not your own evidence.
Interpreter: Yes, he discussed with me and say he wrote it like that.
Mr Hughes:Do you think it’s correct?
Interpreter: I don’t know whether it is correct. It is based on – fully on estimation.
Mr Hughes:So you signed a document containing something that you didn’t know if it was correct.
Interpreter: He guessed it. He was standing. He stood in front of me and he guessed it and he wrote it.
…
Mr Hughes:Do you think it is correct that your mail box is two metres by one metre?
Interpreter: I do not know, no.
Mr Hughes:Well, this is about two metres, about 10 centimetres, 15 centimetres taller than me. Is that how big your mail box is?
Interpreter: No, no, it won’t be that big.
Mr Hughes:So you and your husband were standing by the mail box when he estimated the size of the mail box. Is that correct?
Interpreter: ..... with such preparation. He went there and just .....
Mr Hughes:And did you have any other discussions about the dimensions of the mailbox?
Interpreter: I do not have any idea about this ..... thing, but he discussed with me.
Mr Hughes:Apart from the occasion when you were in front of the mailbox and your husband was – and you saw your husband looking at its dimensions, did you ever on any other occasion discuss the size or dimensions of the mailbox?
Interpreter: Before writing this, we discussed, but never before.
Mr Hughes:Where were you when you discussed it?
Interpreter: When we met in my house – it was in my house when he came – when he was at house, we discussed this.
Mr Hughes:So you and your husband were in your house and you discussed it in your house?
Interpreter: We discussed it inside the house and outside the house – the dimension – what we ..... started – once we talked about this at home – while we were at home.
Mr Hughes:And were there any other occasions or any other places where you had such discussions?
The Witness: No.
This evidence flatly contradicts the first applicant’s evidence of a telephone call from the solicitor’s office. In each case, the evidence of how the figure of 2m appeared in both affidavits was given with confidence and with an apparently good recollection. Yet both cannot be correct. It is difficult to escape the conclusion that (at best) one or the other has given evidence that is deliberately false. The most likely conclusion, however, is that both applicants are giving false evidence about ever discussing the dimensions of the mailbox, and the second applicant just signed a version of her husband’s affidavit[68].
[68] as she later accepted at T 49.7
From these three examples, the Court should conclude that the applicants gave self-serving evidence and were prepared to give answers that suited their case, rather than answers that were true. Their evidence that they did not receive the invitation letter from the Tribunal should be rejected.
Applicants’ reply
The applicants take issue with the Minister’s submission that the difference between the correct and incorrect addresses was not material. The applicants apprehend that the submission is supported by the relatively old decision of the Federal Court in Singh v Minister for Immigration[69]. The decision in Singh was based on s.53 of the Migration Act and regulation 2.16 of the Migration Regulations 1994 (Cth) (“Regulations”) that were in force at the time.
[69] (2000) 98 FCR 77
Section 53 of the Migration Act stated:
(1) A visa applicant is to tell the Minister the address at which the applicant intends to live while the application is being dealt with.
(2) If the applicant proposes to change the address at which he intends to live for at least 14 days, the applicant must tell the Minister the address and the period of proposed residence.
(3)If the Minister sends or leaves a notification to the applicant at the address for the applicant given under subsection (1) and (2), the notification is taken to have been received by the applicant even if it was not received.
Regulation 2.16(1) of the Regulations stated the means of notification of a decision by the Minister:
For the purposes of subsection 66(1) of the Act (dealing with giving notice of decisions), the Minister is to notify an applicant of a decision to grant or refuse a visa:
(a) …
(b) …; or
(c)by sending a notice of the decision to, or leaving a notice of the decision at:
(i) the last address given to the Minister by the applicant under subsection 53(4) of the Act; or
(ii) if the applicant has not given to the Minister an address under that subsection, the last address given to the Minister by the applicant under subsection 53(1) or (2) of the Act; or
(d) …
Singh can be distinguished
Singh concerned an applicant who received a notification letter from the delegate of the Minister advising of a refusal of a protection visa. The letter was correctly addressed, but was received around two months after it was sent. This was too late for the applicant to seek a review of the decision of the delegate of the Minister in the Tribunal. The applicant appealed claiming a denial of procedural fairness and ultimately lost the case in the Full Federal Court. Singh can be distinguished on the basis that it was not specifically dealing with an applicant to whom a letter had been incorrectly addressed. Singh should not be taken as being binding on this Court in relation to whether the deeming provisions in s.441C(4) of the Migration Act operate where a letter is incorrectly addressed to an applicant.
While it may be acknowledged that the purpose of these legislative provisions is to provide a scheme to achieve administrative certainty in relation to the time and manner of giving notification of decisions, this has to be balanced with what is procedurally fair to the applicant. There is nothing in the text of the Migration Act that was in force in relation to Singh or the Migration Act that was in force in relation to this matter to suggest that a notification sent to an incorrect address should be deemed to have been received by the applicant.
Further, the point was raised in the two recent Full Federal Court decisions of SZLBR v Minister for Immigration[70] and SZKGF v Minister for Immigration[71] as to whether a notification sent to an incorrect address would amount to jurisdictional error because of a denial of procedural fairness in the context of a failure to comply with s.424A of the Migration Act[72]. The point was not specifically decided in either of these two cases. Neither case specifically mentioned Singh in discussing this issue. Arguably, Singh is not binding in relation to considering whether a notification sent to an incorrect address amounts to jurisdictional error for a denial of procedural fairness.
[70] [2008] FCAFC 85
[71] [2008] FCAFC 84
[72] SZLBR and SZKGF
The Minister’s reply
The Minister joins issue with the applicants on several issues.
The applicants’ reliance at [24]-[32] of their closing submissions on case law emphasising the stringency with which the Tribunal must comply with Part 7 of the Migration Act does not assist in the resolution of the case. That is because the Tribunal did comply with Part 7 for the reasons identified in the Minister’s opening submissions and post-hearing submissions. The relevant obligation in Part 7 was the obligation in s.425A to give the applicants notice. Notice was given: either because notice is deemed to have been received by reason of s.441C after it was despatched by prepaid post (the first and second issues); or because it was actually received (the third issue).
Additionally, the cases identified by the applicants emphasise the significance of whether non-compliance actually led to a denial of natural justice[73]. In the present case, the applicants’ entire argument rests upon the fact that they, themselves, used interchangeable modes of spelling their home address[74]. Considerations of justice do not lie with the applicants in this case.
[73] Minister for Immigration v SZIZO (2009) 238 CLR 627 at [35]-[36]
[74] T 32.15-20
Contrary to the applicants’ submissions at [33], it is not correct to say that the consequences of the “incorrect address” were “catastrophic”. Rather, the evidence demonstrates that the interchangeable spellings of the address had no effect on delivery at all. Mail arrived whether it was sent to the incorrect address or the correct address[75],
[75] See the evidence collected in the Minister’s post-hearing submissions at [11]
Contrary to [39] of the applicants’ submissions, the Full Federal Court’s discussion in Singh at 86 [32] of the legislative purpose of the “deemed receipt” regime contained within the Migration Act cannot be distinguished. While it is true that this discussion related to s.53 of the Migration Act, and not at s.441C of the Migration Act, the legislative intention of the sections is plainly the same. The reasoning in Singh has been applied to s.441C[76].
[76] See MZYSZ v Minister for Immigration & Anor [2012] FMCA 390 at [42]
Resolution
The circumstances of this case call for a realistic appraisal. The first, and to my mind, most important relevant fact is that the applicants used the correct and incorrect address interchangeably in their visa documents, in documents provided to the Tribunal and, indeed, the documents provided to this Court[77]. Secondly, the address for service provided by the applicants in their visa applications to the Minister’s Department and in their review application given to the Tribunal was incorrect[78]. That said, the correct address was used elsewhere in the visa application and could have been discovered by the Tribunal (or the Minister’s Department) either manually from looking at the documents and comparing the conflicting street addresses with a street directory, or electronically, using intelligent software that would check the accuracy of a residential address given[79]. Where it is obvious from a reading of an application that different spellings of an address have been provided, there is much to be said for the view that the Minister’s Department, or the Tribunal, as the case may be, should check which is the correct spelling. Nevertheless, there is no authority to support a proposition (if made) that a legal duty to enquire arose in this case. The authorities binding upon me establish that the Tribunal (like the Minister’s Department) is entitled to use the spelling of the address for service provided at the relevant part of the forms. Further, in the case of the review application form, only the incorrect address was used.
[77] See the address for service provided by the applicants in their show cause application filed on 23 July 2014 as compared to the address of the first applicant given in his supporting affidavit filed on the same day
[78] See CB 69, Q13 and CB 67, Q3
[79] There is no evidence that either the Department or the Tribunal had such software but it would not appear to be a significant technical challenge
I place no special significance on the fact that the correct street address was included in the Form 1022 allegedly provided to the Tribunal to add the applicants’ child to their application. First, it was not a notification of a new address for service. Secondly, the only evidence that it was provided comes from the applicants. There was no evidence of receipt by the Tribunal. Thirdly, even if that document had been provided to the Tribunal, given the haphazard way in which the applicants spelt their street address in their various documents, it is hard to say that the Tribunal should have given that particular document some special significance.
I do place significance on the letter the Tribunal gave to the applicants dated 24 March 2014[80]. Whether or not the Tribunal received the Form 1022, it knew that the applicants were seeking to add their child. The letter of 22 March 2014 was given to the applicants by hand. It relevantly stated:
[80] CB 80
The mailing address we have is:
[the incorrect address]
Please contact me on [phone number] if you wish to verify this information
The applicants did not respond to that invitation.
With these considerations in mind, I find that the incorrect address provided by the applicants was the “last address for service” provided to the Tribunal by them in connection with the review, which was sufficient to engage the deeming provisions of the Migration Act such that the applicants were taken to have received the Tribunal’s hearing invitation issued on 22 April 2014, by reason of s.441A(4) and s.441C(4) of the Migration Act.
If I were wrong in that conclusion, I would nevertheless find that, even though the deemed receipt provisions were not engaged, the correspondence sent by the Tribunal was more likely than not received by the applicants. There are several reasons for that view. The first is that correspondence sent by the Tribunal to the incorrect address was in fact received by the applicants. Secondly, no correspondence allegedly not received by the applicants was returned to the Tribunal. Thirdly, the applicants were unimpressive witnesses who paid only a tenuous regard to the content of their affidavits and their evidence as to the manner of dealing with correspondence at their residence was confused and confusing. The difficulties with the credibility of the evidence of both applicants, but the first applicant in particular, are so great that that evidence of non receipt by them of the hearing invitation should not be accepted and I do not accept it. I find it more likely than not that the hearing invitation was received by them.
I conclude that the Tribunal met its procedural obligation to the applicants to invite them to a hearing. That obligation having been met, there is no relevant issue of procedural unfairness.
Conclusion
The applicants have failed to establish that the decision of the Tribunal was affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 October 2015
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