Alkan v Minister for Immigration & Multicultural Affairs

The application for review by the Tribunal - allegedly missing letters 6 On 4 October 2000 Mr Alkan lodged an application for review by the Tribunal. The address for service recorded on his application for review was "39/126 Racecourse Road Flemington 3031". The same address was also recorded in the application as Mr Alkan's residential address. Mr Alkan did not continue to live at this address, although it remained his address for service throughout the review process. 7 From lodgment of his application with the Tribunal until he received a copy of the Tribunal's decision dated 21 May 2001, Mr Alkan claims that he received no correspondence from the Tribunal although he frequently checked for any such correspondence at the 39/136 Racecourse Road address, where, at all relevant times, members of his wife's family continued to live. I shall address this aspect of the evidence later. 8 The respondent submits that the Tribunal did in fact write to Mr Alkan requesting him to provide additional information pursuant to s 359 of the Act. Such invitations are claimed to have been in accordance with the relevant provisions of the Act and regulations. The correspondence said to have been sent to Mr Alkan at 39/126 Racecourse Road included: · letter of 6 October 2000 - acknowledgment of Mr Alkan's application for review. This letter also advised the applicant to provide "any documents or written arguments you wish the Tribunal to consider and which you have not already provided to the Tribunal or the Department". · letter of 10 January 2001 - request for additional information; text set out at [15] below. · letter of 27 February 2001 - request for additional information; text set out at [16] below. · letter of 7 May 2001 - notification of date for Tribunal's decision to be handed down. · decision of Tribunal dated 21 May 2001. 9 On 21 May 2001 the Tribunal affirmed the delegate's decision to refuse the applicant's visa application. In its reasons, the Tribunal noted the inconsistent answers given by the couple at the interview, the concerns that had arisen from the home visit and the lack of relevant information provided to support the existence of the couple's relationship. In conclusion, the Tribunal said it was "not satisfied that [Mr Alkan and his wife] have [a] mutual commitment to a shared life and it [was] not satisfied, on the evidence before it, that the relationship between them [was] genuine".

10 The Tribunal's decision was based on documents in its file on Mr Alkan's application, including material from the respondent Minister's Department. In its reasons, the Tribunal noted: "The applicant did not provide the information requested under section 359 of the Act before the time allowed for giving it had passed. Therefore pursuant to section 360(2)(c) the applicant is not entitled to appear before the Tribunal and pursuant to section 363A cannot be permitted to do so. Therefore the Tribunal has made its decision based on the material listed in paragraph 9." 11 Following receipt of the Tribunal's reasons, Mr Alkan contacted his migration agent for assistance. Mr Alkan claims that it was not until he had spoken to his migration agent who subsequently made enquiries with the respondent's Department, that he became aware of the correspondence from the Tribunal requesting him to provide additional information.

Proceedings before this Court 12 An application for an order of review was filed on 18 June 2001, prior to the commencement of amendments to the Act that have since substantially limited the areas for review by the Federal Court. Counsel for Mr Alkan submits that the Tribunal's decision breached certain requirements in the Act and regulations and as such, s 476(1)(a),(b) and (c) of the Act are relevant to the application for review. 13 The grounds of review concern the Tribunal's decision to find that Mr Alkan was not entitled to a hearing under s 360 of the Act because he had failed to provide additional information requested under s 359 of the Act. 14 Of particular importance in this proceeding is the correspondence of 10 January and 27 February 2001 said by the respondent to have requested Mr Alkan to provide additional information pursuant to s 359 of the Act. These "invitations" are relied upon to support the respondent's submissions that the Tribunal was not obliged to invite Mr Alkan to a hearing. 15 The letter of 10 January 2001 reads: "I am writing about your application for review to the [Tribunal] of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs to refuse the grant of a visa to you. The Tribunal will commence processing your application for review in the near future, so would you please provide up to date information. The Tribunal requests that you provide further information as follows: · Information about your current circumstances with your spouse. · Details of any financial arrangements you have made with your spouse, including details about the care of children. · Evidence of whether you represent yourselves as a married couple to friends and relatives. · Information about your commitment to your spouse, including any evidence of shared assets, information about the duration of your relationship, the length of time you have lived together, and the degree of companionship and emotional support that you share. To assist the Tribunal in the process [sic] your application, please note that your submission and documentation supplied in support of it should consist only of documents that are relevant. Documents should be batched according to the types of documents (eg. letters separately) and in date/chronological order (eg. separately for each year). Please do not submit untranslated official documents or any unnecessary papers that are not entirely relevant. To assist the Tribunal to finalise your case as quickly as possible, you are requested to provide this information within one month." [original emphasis] If you have any questions about this letter, you may telephone me on the number shown below." 16 The letter of 27 February 2001 advised Mr Alkan: "Section 359 of the Migration Act allows the Tribunal to invite a person to give it additional information that it considers relevant to the review of a migration decision. The Tribunal invites you to provide the following information: · Evidence about the development of the relationship; · Evidence of cohabitation with your wife since your arrival in Australia; · Evidence of financial arrangements, nature of the household and social activities. You are requested to provide this information in writing, within 28 days of the date of this notification. As this letter is being posted to you, you will be considered to have been notified of this invitation to provide information 7 days after the date of this letter. The effect of this is that you have a total of 35 days from the date of this letter for your response to be received by the Tribunal. If you are unable to provide your comments within the period of time referred to above, you may request in writing that the Tribunal allow you additional time in which to respond. Such a request would need to be received before [the] end of the time allowed for your response. Any information you provide will be considered carefully by the Tribunal. If the Tribunal is still unable to make a decision in your favour, it will then provide you with an opportunity to appear before the Tribunal. If the Tribunal does not receive the information that you have been invited to provide within the above period, it may, pursuant to section 359C of the Migration Act, make a decision on the review without taking any further action to obtain this information form you. Also, you will not be entitled to appear before the Tribunal." [original emphasis]

Relevant legislation 17 In the ordinary course, an applicant is entitled to appear before the Tribunal, as indicated by s 360 of the Act which provides: "(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 359C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal." In this proceeding, the Tribunal took the view that it was not required to invite Mr Alkan to a hearing as he had failed to provide any additional material pursuant to s 359 and as such s 360(3) was applicable to disentitle Mr Alkan to a hearing. 18 Section 359C(1) provides: "If a person: (a) is invited under section 359 to give additional information; and (b) does not give the information before the time for giving it has passed; the Tribunal may make a decision on the review without taking any further action to obtain the additional information." As to seeking additional information, s 359 requires: "(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. (2) Without limiting subsection (1), the Tribunal may invite a person to give additional information. (3) Subject to subsection (4), an invitation to an applicant must be given to the applicant by one of the methods specified in section 379A. (4) Subsection (3) does not apply if the applicant is in immigration detention because of: (a) a decision to refuse to grant him or her a bridging visa; or (b) a decision to cancel his or her bridging visa." It is also relevant to note s 359B of the Act, which provides: "(1) If a person is: (a) invited under section 359 to give additional information; or (b) invited under section 359A to comment on information; the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances. (2) If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period. (3) If the invitation is to give information or comments at an interview, the interview is to take place: (a) at the place specified in the invitation; and (b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period. (4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period. (5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to: (a) a later time within that period; or (b) a time within that period as extended by the Tribunal for a prescribed further period; and then the response is to be made at an interview at the new time." 19 Invitations from the Tribunal requesting applicants to provide additional information must comply with the requirements set out in s 379A of the Act, including: "(1) A document specified in subsection (3) is taken to be duly given to an applicant for review if: (a) the document is sent (physically, electronically or otherwise) to: (i) the last address for service provided by the applicant in connection with his or her application for review; or (ii) the last residential address provided by the applicant in connection with his or her application for review; and (b) the Tribunal has a receipt or other evidence indicating the date of dispatch. (2) A document specified in subsection (3) is taken to be duly given to an applicant for review if the document is given: (a) by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or (b) by leaving it at the applicant's place of residence with a person who appears to live there and appears to have turned 16. (3) The documents specified for the purposes of subsections (1) and (2) are: (a) an invitation to an applicant under section 359 (other than an invitation to the immigration detainees mentioned in subsection 359(4)); and (b) an invitation under section 359A (other than an invitation to the immigration detainees mentioned in subsection 359A(3)); and (c) a notice under section 360A (other than a notice to the immigration detainees mentioned in subsection 360A(3)); and (d) a notice under section 368A; and (e) a statement given under subsection 368B(6). (4) It is sufficient compliance with the requirement to give a document referred to in subsection (3) if a facsimile, or a certified copy, of the document is so given.

(5) A document posted in accordance with paragraph (1)(a) must bear correct prepaid postage and, if the document is posted to an overseas address, the postage must be at the full airmail rate." 20 Regulation 5.03 provides: "(1A) This regulation applies to a document sent by the Minister or a Tribunal to a person in that person's capacity as: (a) an applicant, of any kind, under the Act or these regulations; or (b) the holder, or the former holder, of a visa; or (c) a person who is invited in writing by a Tribunal to give information or comments to the Tribunal. (1) For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is either: (a) if the document is sent from a place in Australia to an address in Australia - 7 days after the date of the document; or (b) if the document is sent from: (i) a place outside Australia to an address in Australia; or (ii) a place in Australia to an address outside Australia; or (iii) a place outside Australia to an address outside Australia; 21 days after the date of the document. (2) Subregulation (1) does not apply to a document unless it is sent within 3 days after the date of the document."

The applicant's case 21 Counsel for Mr Alkan submits that the Tribunal should not have been satisfied that the applicant had been invited to provide additional information in accordance with the relevant provisions of the Act and regulations. In particular, the applicant claims that the Tribunal should not have been satisfied because: (i) the letter of 10 January 2001 did not constitute an "invitation" for the purposes of s 359 of the Act; (ii) partial concealment of the applicant's address details on the envelope enclosing the letter of 27 February 2001 meant that the Tribunal should not have been satisfied that the letter was sent to the correct address. 22 The applicant also relies on his own evidence that he did not receive any correspondence from the Tribunal, including the letters of 10 January 2001 and 27 February 2001, to support his claim that he was not invited to provide additional information to the Tribunal and therefore should not have been precluded from appearing before the Tribunal. Additional grounds concerning the adequacy of the evidence of dispatch, being grounds 4 and 5 of the application were abandoned at the hearing.

Letter dated 10 January 2001 23 Counsel for the applicant submits that the letter dated 10 January 2001 did not constitute an "invitation", within the contemplation of s 359 of the Act. The letter, as set out above at [15], specified how supporting documentation should be assembled including the direction that all documents should be "batched". The applicant's criticism is that the letter did not specify how the applicant's submissions or the information sought should be given: no indication was given as to whether the material should be in writing, by email, telephone or given during the course of an interview. On this basis, the applicant submits that the letter did not comply with the requirement under s 359B(1) that the invitation "specify the way in which the additional information … may be given". Thus, the letter should not have been relied upon by the Tribunal to later preclude the applicant from a hearing. 24 Counsel for the respondent submits that there was sufficient specification as to the way additional material to the Tribunal should be provided. Reference was made to the following passage in the letter: "Please note that your submission and documentation that is required in support of it should only consist of documents that are relevant." It was submitted that this showed, as a matter of plain English, that both the submission and supporting documentation should be in writing - should be in "documents". 25 Counsel for the respondent referred to the decision in Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 277. In Paul, the letter to the applicant requesting further information specified the wrong period of time for the applicant to provide a response to the Tribunal. Despite this inaccuracy, the Court found that the letter was still an invitation for the purposes of s 424B of the Act, the equivalent provision for invitations from the Refugee Review Tribunal to applicants seeking protection visas. This case, however, concerned a somewhat different question from the present one.

26 In my view, the letter of 10 January 2001, though unfortunately expressed, was sufficiently clear as to how submissions and further information to the Tribunal should be provided. It was to be provided in documentary form. The inclusion of the highlighted paragraph, with its officious tone and bureaucratic requirement and terminology that documents be "batched", was scarcely an example of best practice as to the relations between an administrative tribunal and those beseeching its intervention. This is particularly so in light of the high proportion of non-English speaking visa applicants, the large number of them who are unrepresented or less than adequately represented in such proceedings and who rely on the Tribunal for information and clear guidance as to the review process. While the letter complied with the requirements in s 359B, because it did manage to specify the way in which additional information and/or comment should be provided, it stood at, but did not quite pass across, the threshold of non-compliance with the combined effect of s 359 and s 360 which require that an applicant should have been "invited" to give additional information. As the Shorter Oxford English Dictionary recognises, the concept of an invitation to a person to do something connotes that the person be so asked "graciously, kindly or courteously"; the word is apt when the thing that might be done is "assumed to be agreeable". The levels of grace, kindness and courtesy might certainly have been improved.

Letter dated 27 February 2001 27 If, contrary to my view, the letter of 10 January 2001 does not pass the s 360 test as to "specification", the respondent must rely on the letter of 27 February 2001 as the relevant invitation. In contrast to the earlier letter, that letter was the model of a gracious, kind and courteous letter of an official character, and a perfectly adequate specification of the matters required by s 359B. The applicant's complaint does not go to the letter's content but to whether the Tribunal reviewably erred in concluding that the letter was sent to the correct address. 28 The respondent pointed, as evidence of the dispatch of the letter, to a photocopy of an envelope, date-stamped 28 February 2001, said to enclose the letter of 27 February 2001. The complaint is that not all of the applicant's details were visible within the transparent "window" of the envelope. The details of Mr Alkan's address on the envelope which were visible were these:

"r Nuri Alkan /126 Racecourse Road EMINGTON VIC 3031" 29 Noticeably Mr Alkan's unit number is obscured. The applicant's evidence is that 126 Racecourse Road is a multi-storey building containing approximately 200 units. Counsel for the applicant submits that the lack of the unit number on the copy envelope (or copy letter within the envelope's window), combined with the applicant's own evidence that he did not receive the letter, indicated that the Tribunal should not have reasonably or confidently concluded that the applicant had received the letter, or that he did not in fact receive the letter. It is clear that the letter itself contained the correct apartment number of the flat in question. The applicant submits, however, that there is no evidence to establish that the postal employee charged with delivering the letter did flex or could have flexed the letter so as to see the correct unit number. In my opinion, it may readily be inferred that a postal worker of reasonable diligence and intelligence would have manoeuvred the envelope so that the address details were visible in full, and delivered the letter to the correct address. 30 As mentioned earlier, at the time the letter of 27 February 2001 was sent, Mr Alkan claims that he was not living at 39/126 Racecourse Road but at 63 Lorne St, Faulkner. Mr Alkan has moved several times since he arrived in Australia in August 1997 but his address for service has remained the same: He said: "The reason I gave that address is to make it safer … because it was a permanent address for my in-laws, I was moving here and there, and the place where I was living in, the mailbox was frequently opened by the previous tenants so that they can get their mail. So it wasn't safe." 31 Mr Alkan claimed that he had continued to check for mail at 39/126 Racecourse Road, where members of his wife's family lived. He said; "I was constantly asking the people who were living there, [the applicant's in-laws], constantly asking them whether they have received in my name a document coming from the department or the review tribunal." 32 The only correspondence which Mr Alkan claimed he received from the Tribunal since filing his application for review was the Tribunal's reasons dated 21 May 2001. Mr Alkan could not say how or when the Tribunal's decision arrived at the above address. His evidence was that his wife had shown him the decision and explained the contents, in particular explaining that his application had been unsuccessful. Mr Alkan gave evidence that his wife and her siblings had grown up in Australia and were well able to understand both written and spoken English. He considered their English to be good. 33 The respondent produced evidence as to the procedures in place for the dispatch of mail from the Tribunal. The affidavit of Mr Hodgett, Deputy Registrar of the Tribunal, sworn 24 October 2001 outlines these procedures. It is sufficient to say that at the relevant time, all correspondence from the Tribunal to applicants was deposited in a wire basket identified by an attached sign that read "recorded dispatch". At or about 4.00pm of each working day a designated officer collected all of the correspondence in the basket. Each envelope was photocopied, usually three envelopes to a photocopied page, with each page date-stamped with the date of dispatch. The mail was then collected by a representative from Australia Post at or about 4.30pm, on the same day. Counsel for the applicant indicated that there was no suggestion that the letters were not posted; the question was, so counsel said, whether the Tribunal should have been satisfied that the applicant had received the mail, pursuant to the procedures prescribed by the Act and Regulations. 34 I am not satisfied that the letter of 27 February 2001 was not sent to the correct address because of the partial concealment of the address details by the envelope, at the time it was photocopied at the Tribunal's premises. 35 Mr Alkan's evidence is that the relevant mail never arrived at 39/126 Racecourse Road. His evidence is, at its best, inconsistent and there have been significant changes to his story during the course of these proceedings, without a satisfactory explanation for such changes. In his affidavit sworn 1 November 2001, Mr Alkan indicated that during the five years prior to his application for review to the Tribunal, he had, at various times, lived at the following addresses in Victoria: · Unit 135, 120 Racecourse Road, Flemington · Unit 81, 130 Racecourse Road, Flemington · Unit 39, 126 Racecourse Road, Flemington · 63 Lorne Street, Faulkner · Unit 3, 562 Pascoevale Road, Oak Park

As I understood the evidence, these were not only his addresses in the five years prior to his application for review to the Tribunal, but also his places of residence up to the hearing before me. 36 However, during cross-examination, when Mr Alkan was asked where he had lived since he arrived in Australia on 16 August 1997, he said that he had never lived at 81/130 Racecourse Road, Flemington. No reasonable explanation was provided for this change in his evidence. Mr Alkan also failed to mention in his affidavit that he had lived in Shepparton; when challenged during cross-examination, he stated that he had lived there for a period of two months. This answer was in line with his wife's response to the respondent's Department on 22 August 2000, whereas his earlier statement to the Department had been that he had lived in Shepparton for a period of approximately 5 months and had returned to work in Shepparton between February and April 1999 (see [4] above). When questioned about this inconsistency during cross-examination, Mr Alkan said that at the time of the departmental interview he was scared that he would be removed from Australia. However, this does not explain why there was no mention of living in Shepparton in his affidavit of 1 November 2001 or why he did not mention these details, when questioned in these proceedings. On its own, such might be of little significance. However, in general, in my opinion, Mr Alkan lacked credibility and I would not accept, on and from his evidence alone that the letter of 27 February 2001, or any of the other mail, did not arrive at 39/126 Racecourse Road, Flemington. 37 No other witness was called to support his contention that the correspondence never arrived at 39/126 Racecourse Road. In particular, no members of his wife's family said to reside at this address throughout the relevant period, were called to give evidence. Counsel for the applicant acknowledged that he had elected not to call any witnesses other than Mr Alkan and sought leave to adduce further evidence. I declined to grant the applicant such leave. Strategic and tactical decisions about the evidence to be adduced during a hearing must be made in many kinds of litigation, and there is nothing about this particular forensic decision to indicate that it was strange or negligent to make. There was also no positive indication that there would be evidence from his wife's relatives to support his claims. The applicant's story was, in my opinion, inherently improbable. His account of his own whereabouts varied. It is not shown that counsel had not reasonably taken the view that more harm than good might be done by calling people who could give other versions of the facts deposed to by the applicant. The failure to call witnesses who should have been able to support the applicant's version of events makes the rejection of his testimony the easier.

Conclusion 38 In assessing the applicant's credibility I have tried not to hold small things against him. The consequences of the Tribunal's decision are, of course, serious. The result of the refusal of the visa application will presumably be that Mr Alkan may be liable to exclusion from Australia and to possible physical separation from his spouse, an Australian citizen. She may be faced with the difficult choice of living apart from her husband or moving to Turkey. Nevertheless, the applicant has failed to establish that the necessary procedural requirements were not met. The Tribunal did invite the applicant to provide additional information under s 359 of the Act. The Tribunal was therefore not obliged to invite the applicant to a hearing, before it, pursuant to s 360(2)(c) of the Act and was entitled to make its decision based on the material before it.

Disposition 39 The application should be dismissed with costs, except for the costs incurred by the respondent in the preparation of the unnecessarily long affidavit of Mr Hodgett. I certify that the preceding thirty-nine (39) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate: Dated: 19 June 2002 Counsel for the Applicant: Mr Lee

Solicitor for the Applicant: Babacan & Associates