Haddara v Minister for Immigration and Multicultural Affairs

Application for judicial review 5 The applicant was not legally represented. His application was not drawn by a lawyer and did not address itself clearly or specifically to the permissible grounds of review under s 476 of the Migration Act 1958 (Cth). To a considerable extent the grounds stated seek to attack the Tribunal's findings of fact and to suggest that the Tribunal did not take account, or adequate account, of relevant matters. Those, of course, are not grounds on which the Court has power to intervene. The application also expresses the applicant's concern about the anonymous telephone call to the Department; but the Tribunal gave no weight to what the anonymous caller had said. A reading of the Tribunal's reasons does not disclose any error in interpreting the applicable law or in applying the law to the facts as found. Nor, but for one significant matter going to the procedures which the Tribunal was obliged to observe, can I see any other basis on which the Tribunal's decision might be impugned. 6 The significant matter to which I have referred arises from the second ground specified in the application, as follows: "The respondent failed to give me the opportunity to attend a hearing as requested on 30.3.99 and no evidence was shown as to confirm that the respondent in fact invited me to attend hearing." 7 The Minister accepted that the applicant sufficiently raised the question whether the Tribunal observed the procedures required by s 425 and s 426 of the Migration Act as those provisions applied when the matter was before the Tribunal.

Compliance with s 425 and s 426: evidence and findings 8 The circumstances relevant to that ground may be briefly stated. In a letter accompanying his application for review by the Tribunal the applicant set out a series of brief submissions as to why he should be regarded as fearing harm both because of his political opinion and because of his membership of a particular social group. He concluded: "For the abovementioned reasons I seek a review of this decision and the opportunity to put forward the information you feel I didn't offer such as political affiliations and any other information you deem necessary. I look forward to such an invitation for an interview and await your most favourable response." 9 In his application he stated his home address as "5/37 Macarthur St Parramatta NSW 2150". He did not give, separately, an address for service. He gave his telephone number as "0416 108164"; that was the number of a mobile telephone which he then had. 10 The Tribunal wrote to the applicant at his stated home address on 30 April 1998. The letter briefly outlined the Tribunal's procedures. It included this paragraph: "If there is any change in your personal circumstances that may affect your application, please tell the Tribunal in writing immediately. It is also very important to tell the Tribunal in writing if you change your telephone number, home address or the address where you want letters from the Tribunal sent (your address for service). If you do not tell us you may lose your opportunity to appear before the Tribunal and give evidence on your case." The applicant, who gave oral evidence before me, accepted that he received that letter. 11 On 21 January 1999 the Tribunal wrote to the applicant, again at his stated home address. The letter was headed "Notice under Section 426 of the Migration Act 1958". It recorded that the Tribunal was not prepared to make a favourable decision on the written material. It informed the applicant of his entitlement "to come to a hearing of the Tribunal to give oral evidence in support of your claims" and "to ask the Tribunal to obtain oral evidence from another person". It asked the applicant to complete a "'response to hearing offer' form" and return it to the Tribunal by 11 February 1999. It informed the applicant that if he told the Tribunal that he wished to give oral evidence the Tribunal would write shortly to inform him of the hearing date. The letter concluded with the following, prominently printed in bold capital letters: "IF YOU DO NOT RESPOND BY 11 FEBRUARY 1999 WE WILL ASSUME THAT YOU DO NOT WANT TO COME TO A HEARING AND THE TRIBUNAL MAY MAKE A DECISION ON YOUR CASE WITHOUT FURTHER NOTICE." The envelope in which the letter was sent is in evidence. It indicates that it was addressed to the applicant at his stated home address and that it was sent by registered post. There are two endorsements on it, "C/L 22-1 PDC" and "Final 27/1 unclaimed". The Minister asked me to infer, consistently with information given by the Parramatta Post Office by telephone to an officer of the Tribunal, that cards indicating that the letter was available for collection had been left at 5/37 Macarthur Street on 22 January and on 27 January and that the letter was not claimed. It was, in fact, returned to the Tribunal, unclaimed, on 11 March 1999. The Tribunal recorded in its reasons that there was no response to the letter of 21 January and that: "On 16 February 1999 a person who identified herself as the applicant's sister telephoned the Tribunal to inquire about the progress of the application. She was informed about the letter that had been sent to the applicant. The Tribunal officer to whom she spoke told her that the applicant should contact the Tribunal no later than the following afternoon to inform the Tribunal whether he wished to attend a hearing. The applicant did not do so and the telephone number for the applicant given by his 'sister' proved to be disconnected when the Tribunal sought to phone him. A mobile telephone number previously given by the applicant also appeared to be disconnected." 12 That statement is supported by file notes of officers of the Tribunal who spoke to the "sister" and tried the two telephone numbers. The applicant's evidence was that he did not receive the letter; he did not receive any card informing him that it was available for collection; he did not have a sister in Australia; he had a sister‑in‑law, the wife of his brother with whom, throughout the relevant period, he lived at 5/37 Macarthur Street; the sister‑in‑law had ceased to live there following a dispute; partly as a result of that dispute, his brother's telephone was disconnected for a time because telephone charges were not paid; the applicant had lost the mobile telephone, the number of which he had included on his application form, and later had access to another mobile telephone (his brother's) whose number he had not given to the Tribunal; and approximately a year before the hearing before me, the applicant had had his mail redirected to a post office box at Granville, though he continued to reside at 5/37 Macarthur Street. 13 On 24 March 1999 the Tribunal wrote to the applicant at 5/37 Macarthur Street informing him of its decision and enclosing a copy of the decision and reasons; and informing him also of his right to seek review by the Court. That letter was sent by registered post; the applicant received a card informing him that it was available for collection and he collected it. He replied by a letter dated 30 March 1999 in which he informed the Tribunal of his post office box number and of his two current telephone numbers; and he asked for a hearing, on the ground (among others) that he had not received the letter of 21 January. The Tribunal responded - correctly - that "as its decision has been finalised the matter cannot be re‑opened and the Tribunal cannot provide you with a further offer of hearing". 14 It is necessary to make some findings of fact. There are three, the first two of which, unlike the third, are uncontroversial. First, I find that the Tribunal's letter dated 21 January 1999 was received at the Parramatta Post Office not later than 22 January 1999. Secondly, I find that the applicant did not actually receive that letter. Thirdly - and this was a matter of controversy - I find that the applicant did not actually receive any card, whether or not such cards were left at 5/37 Macarthur Street, informing him that the letter of 21 January was available for collection. 15 That third finding accords with the applicant's evidence. Counsel for the Minister suggested that I should not accept that evidence: I should infer that two cards were left at the address and that, because the applicant lived there, at least one of them came to his attention. I could make those inferences the more readily, it was said, because some of the applicant's evidence was evasive and not such as to inspire confidence in its veracity. Certainly the applicant's evidence was vague, at least, as to two matters: the dates on which he acquired the new mobile telephone and had his mail redirected; and he was not immediately forthcoming with the information that his brother's telephone was disconnected for non‑payment of charges. But some allowance needs to be made for an applicant giving evidence through an interpreter, and not legally represented (his uncle appeared for him, by leave, at the hearing: he made submissions on behalf of the applicant and asked the applicant some questions in chief and by way of re‑examination). I am not prepared to regard the applicant as an unreliable witness. When notified that the letters of 30 April 1998 and 24 March 1999 were available for collection he collected them promptly; it would be surprising if he simply neglected notifications in relation to the letter of 21 January. And, despite a submission to the contrary, I see no reason to doubt the genuineness of his continuing desire for a hearing. I accept his evidence. For reasons which will appear, I do not think it is necessary to make a finding as to whether the post office delivered cards to the Macarthur Street address following receipt at the post office of the letter of 21 January.

Statutory requirements: actual or deemed receipt? 16 Section 425 and s 426, as in force during the relevant period, provided as follows: "425 (1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; (b) may obtain such other evidence as it considers necessary. (2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review. 426 (1) Where section 424 does not apply, the Tribunal must notify the applicant: (a) that he or she is entitled to appear before the Tribunal to give evidence; and (b) of the effect of subsection (2) of this section. (2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. …" Certain provisions of the Migration Regulations are important also. So, by way of background, is s 504 of the Migration Act, which authorised the making of the regulations: "504 (1) The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations: … (e) making provision for and in relation to: (i) the giving of documents to; (ii) the lodging of documents with; or (iii) the service of documents on; The Minister, the Secretary or any other person or body, for the purposes of this Act; … (3) The regulations that may be made under paragraph (1)(e) include, but are not limited to, regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of this Act and the regulations to have been received by the person at a specified or ascertainable time." 17 The relevant regulations were reg 4.41 and reg 5.03. They provided: "4.41 (1) If: (a) a document is to be given to, or served on, a person for the purposes of a review by the Tribunal; and (b) no other provision as to the manner of giving or serving the document is made by the Act or these Regulations; the document may be given or served: … (d) if the person has not lodged an address for service: (i) by giving it to the person personally or to a person duly authorised to receive documents on behalf of the first‑mentioned person; or (ii) by posting it to the person at his or her last‑known place of residence; … 5.03 (1A) This regulation applies to a document sent by the Minister, a Tribunal or review officer to a person in that person's capacity as: (a) an applicant, of any kind, under the Act or these regulations; … (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; … (2) Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document." 18 In Uddin v Minister for Immigration and Multicultural Affairs [1999] FCA 1041 Hely J said at par 22: "The authorities establish that s 425 and s 426 are cumulative requirements in the sense that the giving of a notice under s 426 will not necessarily exhaust the s 425 obligation: Minister for Immigration & Multicultural Affairs v Capitly [1999] FCA 193. But, unless a s 426 notice was given to the applicant, the proposition that he was given an opportunity to appear before RRT to give evidence, does not get off the ground. Even if the effect of the regulations is such that the s 426 notice is deemed to have been received by the applicant such that the requirements of s 426 are satisfied, there is or may be a further question as to whether the obligation imposed upon RRT by s 425 is satisfied where, as a matter of fact, the opportunity for which s 425 makes provision is not extended to the applicant." So, in this case, compliance with s 426 was a necessary condition of compliance with s 425 but not necessarily a sufficient condition. The Minister's contention that the Tribunal complied with s 426 depends on the validity of the following reasoning: the letter of 21 January 1999 was a notification of the kind required by s 426. It was also a document as to the manner of giving or serving of which no other provision was made by the Act or regulations and which might therefore be served (as it was in fact served) by posting it to the applicant at his last‑known place of residence. Similarly, the letter was a document sent by the Tribunal to the applicant in his capacity as an applicant under the Act; and, there being no contrary provision of the Act or specific provision elsewhere in the regulations, it was taken to be received by the applicant, having been sent from a place in Australia to an address in Australia, seven days after 21 January 1999. Because the notification was thus taken to have been received, the applicant equally must be taken to have been notified. 19 It is not difficult to appreciate the force of an argument along those lines simply as a matter of construction of the relevant provisions. If correct it would have the consequence (as here) that an applicant was notified under s 426 although the applicant never in fact received the notification (that might be defended as a necessary, if unfortunate, consequence of the need to achieve certainty in the administration of the Act). It would also have the consequence that an applicant who actually received a notification posted immediately before the expiry of seven days after its date would not, as a practical matter, be able to give written notice to the Tribunal within the period allowed by s 426(2): Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584 at 589 per Burchett J. But the argument in any event encounters an obstacle in the form of authorities in this Court to which counsel for the Minister properly and helpfully referred me. The decisions of particular importance are Sook and Uddin, the only decisions, so far as I am aware, in which the applicability of reg 5.03 to s 426 has been directly considered. In Sook Burchett J held - probably obiter - that reg 5.03 does not apply to s 426. Neither Moore J nor Katz J, the other two members of the Full Court in Sook, found it necessary to consider the question. Burchett J held that the words "subject to the Act" in subreg (1) operate to exclude from the regulation the obligation under s 426 that the Tribunal "must notify" the applicant. His Honour held at 591, following the decision (in relation to s 478 of the Migration Act) of Merkel J in Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 that "actual notification" was required. His Honour said, at 592: "The proper conclusion from all these considerations is that regs 4.41 and 5.03 do not operate so as to reduce or set aside the clear effect of s 426, by virtue of which the Tribunal 'must notify the applicant' of the specified rights, as rights really and not notionally conferred by the Act." 20 In Uddin Hely J considered the authorities and preferred the view of Burchett J to the contrary view of Beaumont J (who had not been referred to certain of the earlier authorities) in Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574. Hely J held, accordingly, that reg 5.03 did not apply to a notification under s 426 and, accordingly, actual notification was required. His Honour said at par 34: "The decision of Burchett J is a decision directly on s 426 of the Act. In my view, neither the conclusion which his Honour reached, nor the reasoning on which it is based can be characterised as clearly wrong. In those circumstances I think that I should follow his Honour's decision, with the result that the procedures required to be observed by s 426 of the Act in connection with the making of the decision were not observed, as the applicant was not notified prior to the decision of the matters referred to in s 426(1)(a)." That was the ground on which Hely J expressly based his decision. I do not think it is open to me to hold that it is clearly wrong: plainly, I think, it is not, although another view might have been open. I should, therefore, follow Uddin and, indirectly, the views expressed by Burchett J in Sook. The findings of fact which I have already made necessarily mean, in my view, that the applicant was not actually notified of the matters required by s 426(1). Because the procedures required by s 426 were not observed, neither were those required by s 425. It follows that the applicant has made out the ground of review in s 476(1)(a) of the Migration Act and, there being no suggestion that there is any discretionary basis on which relief should be refused, the Tribunal's decision should be set aside and the matter remitted for determination. 21 In those circumstances it is unnecessary for me to consider two other possible bases on which authorities suggest that the applicant might succeed. In Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 613 Einfeld J held that where a registered letter, addressed to a particular place, is in fact taken to and kept at a post office, rather than taken by the postal service to the particular address, it is to be regarded as "sent to" the post office rather than the address. In Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 Gyles J expressed the view, obiter, that reg 5.03 is, at least in part, invalid: see at par 45 to par 50. In the circumstances it is unnecessary, and therefore I think undesirable, that I say anything about either of those matters.

Conclusion 22 For the reasons I have given, the orders of the Court are that:

1. The decision of the Refugee Review Tribunal made on 22 March 1999 be set aside.
2. The matter be remitted to the Tribunal (differently constituted) for determination according to law.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Solicitor for the Respondent: Australian Government Solicitor