SZAXF v Minister for Immigration & Multicultural & Indigenous Affairs

Review of Tribunal's decision in the Federal Magistrates Court 5 In seeking a review of the Tribunal's decision the appellant relied on an alleged failure to comply with the provisions of s 425 of the Migration Act 1958 (Cth) ('Migration Act'). Section 425, as it was at the time of the Tribunal's decision, must be read in the context of the immediately preceding and following sections. The provisions are as follows: 424 (1) If, after considering the material contained in the documents given to the Registrar under sections 418 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence.

(2) For the purposes of subsection (1), a decision or recommendation made on a review is taken to be the decision or recommendation most favourable to the applicant if there is no other decision or recommendation that: (a) the Tribunal could make; and (b) in the Tribunal's opinion, the applicant would prefer the Tribunal to make.

425 (1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (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.

(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice. 6 The following facts, as found by the learned Federal Magistrate, are not in contention. By letter dated 24 October 1997, the Tribunal invited the appellant to appear before it on 18 November 1997. The letter was sent by pre-paid registered post to the address given in the appellant's application to the Tribunal. The appellant did not give a telephone number and he indicated that he did not have an advisor. For reasons that have not been established, the letter was not able to be delivered and was returned to the offices of the Tribunal on 25 November 1997, the day before the Tribunal made its decision. A copy of the envelope in which the letter was sent was in evidence before Federal Magistrate Raphael. In relation to this document his Honour commented: 'The document does not show the date of posting but it has some holograph indications on it as follows: first, "27.10", second "4.11" and third "10.11". I take this to refer to those little postcards that are put through one's letter box to advise one that a registered post item is waiting for the recipient at the post office. The envelope also has on it the notation "return unclaimed", a stamp "return to sender" and a "received stamp" dated 25 November 1997 from the Refugee Review Tribunal'. 7 The appellant alleged that the Tribunal knew that he had not received this invitation. However, he did not present any evidence to support this allegation or to show that the Tribunal would have known about such a letter within 24 hours of it having been received at the Tribunal's offices. The appellant also failed to provide evidence to support his allegation that s 418(3) of the Migration Act had not been complied with.

Application for adjournment 8 At the hearing before the learned Federal Magistrate, the appellant sought an adjournment to enable him to provide additional evidence. That application was refused. In an ex tempore judgement his Honour noted that the appellant was legally represented, that the hearing had been expedited because the appellant was in detention, that the appellant had not complied with directions made in preparation for the conduct of the hearing and that he had had a lengthy time in which to prepare his case. In his Honour's view it was not unreasonable to assume that 'if appropriate efforts had been made, the evidentiary basis for the allegations and submissions which are being made could have been provided.' In the absence of such evidence the appellant's claims under s 418(3) and s 425 could not be substantiated. 9 In relation to the claim of non-compliance with s 425, his Honour applied the dictum in Budiyal v Minister for Immigration (1998) 82 FCR 166 at 172, to the effect that the test for determining whether an applicant has been given an opportunity to appear is whether, on an objective assessment, the opportunity to appear has been reasonable in all the circumstances. The dictum was approved by a full court in Minister for Immigration v Capitly (1999) 55 ALD 365 ('Capitly') at 371. 10 Federal Magistrate Raphael stated that he was not satisfied that the Tribunal was aware that the letter had not been delivered and observed: 'In any event there were a number of reasons why the letter might not have been delivered which are not consistent with a lack of fault on the part of the applicant. The applicant may have left his address and not informed the Tribunal. The applicant may have deliberately decided that he did not want to receive letters from the Tribunal. There is no suggestion by the applicant that he was ill at the time and indeed there is no explanation whatsoever given by the applicant as to why the letter was not received.' 11 Noting that the letter was sent by pre-paid registered post, Raphael FM deduced from 'holograph indications' on the envelope that attempts to deliver it were made on 27 October, 4 November and 10 November 1997 (see [6] above). Concluding that in all the circumstances the appellant had been offered a reasonable opportunity to appear before the Tribunal, his Honour commented: 'If the applicant had left a telephone number at which he could be contacted then I would have expected the Tribunal to contact him on that. He did not. If the applicant had given an address of an agent to whom correspondence could also be sent I would have expected some communication with the agent but he did not. One wonders what else the Tribunal could reasonably have been expected to have done.'

This appeal 12 At the hearing of this appeal the appellant sought an extension of time in which to file a notice of leave to appeal against the Federal Magistrate's decision not to grant an adjournment. Counsel for the respondent strenuously objected to the application. There had been no prior notice of this application or of the supporting affidavit that the appellant sought to file in Court. There was no real explanation as to why leave to appeal was not sought at the time his Honour made his decision or, if the appellant needed some time to consider his position, why his application was delayed until the day of the hearing of the appeal from his Honour's final decision. 13 His Honour's decision not to grant the adjournment was within his discretion and no error of principle has been shown. In addition, no clear explanation was given as to what the appellant intended to achieve if he were successful in an appeal against the interlocutory order. In my opinion nothing would be gained by such an appeal and given the unexplained delay, the absence of prior notification and the virtual certainty that such an appeal would be doomed to fail, I refused the application for an extension of time and proceeded with the hearing of the appeal proper. 14 At the hearing of the appeal counsel for the appellant sought to adduce new evidence in the form of an affidavit of the appellant concerning the non-receipt of the Tribunal's invitation issued under s 425. Consistent with the overall conduct of this matter, the requirements of O 52 r 36 had not been observed. The only explanation offered as to why this evidence was not presented at the hearing in the Federal Magistrates Court was that the appellant's solicitor had been too busy attending to the application for a bridging visa. This was put forward in the context of the hearing in the Federal Magistrates Court being expedited. Initially that hearing was scheduled for 2 February 2004 but, as indicated in [2] above, the hearing was brought forward to 25 August 2003 because the appellant was in detention. Nevertheless, as counsel for the appellant conceded, the appellant was notified of the date of the hearing more than a month in advance. In my view that was ample time to put on the relevant evidence or at least to make a timely application for a later hearing date. None of this was done. Those circumstances are sufficient in themselves to justify refusing leave to adduce new evidence but, in any event, the evidence proffered by the appellant would not assist his case. Given that the Tribunal's letter was returned unopened there is little doubt that the appellant did not receive it, in the sense of opening and reading it, and the respondent does not contend otherwise.

Tribunal's alleged failure to comply with s 425 15 In challenging the conduct of the Tribunal the appellant relied on a number of cases in which the Tribunal was held not to have complied with s 425 because of the inadequacy of notification under s 426. The respondent claimed that those cases could be distinguished because in each case there was some fault on the part of the Tribunal or some material that should have put it on notice that the s 426 letter had not been received by the applicant. In Uddin v Minister for Immigration and Multicultural Affairs (1999) 165 ALR 243 ('Uddin'), there were problems with the address to which the Tribunal sent its letter of invitation to a hearing. In Capitly the applicant's request for an adjournment because of illness was refused in circumstances that led the primary judge to infer that the request had been drawn to the attention of the Tribunal member concerned. In Haddara v Minister for Immigration and Multicultural Affairs (1999) 166 ALR 401, the s 426 letter was returned unclaimed in circumstances in which file notes in the Tribunal's records suggested that the applicant's failure to receive the letter had been brought to the Tribunal's attention. 16 The decision to remit the matter to the Tribunal in each of the cases referred to above was based on there being a failure to observe the procedures required under the Migration Act which was then a ground of review under s 476(1)(a). That section has been repealed and now, in reviewing the Tribunal's conduct and decision, the limits imposed on the jurisdiction of this Court and the Federal Magistrates Court pursuant to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) must be remembered; see s 476 of the Migration Act and the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003)211 CLR 476. The issue is whether, in all the circumstances, the Tribunal made a jurisdictional error in making its decision. 17 Counsel for the appellant submitted that jurisdictional error could be demonstrated even in the absence of evidence to show that the Tribunal knew the s 426 letter had been returned unclaimed. Somewhat simplified the argument was as follows. Under s 425 the Tribunal was not entitled to make a decision 'on the papers' that was unfavourable to the appellant without first giving the appellant an opportunity to appear before it. Section 426 required the Tribunal to notify the appellant of his entitlement under s 425. When the letter was returned unopened to the Tribunal's premises, the Tribunal member, even if he did not personally know the letter had not been delivered, had notice that the appellant had not been notified of his rights in accordance with s 426 and accordingly, had not been given an opportunity to appear as required by s 425. That being so, it was claimed, in making a decision 'on the papers' after the letter was returned, the Tribunal was acting outside its jurisdiction as limited by ss 424, 425 and 426. 18 It was not clear exactly in what sense counsel for the appellant was using the term, 'notice'. It was clear however, that the Court was being asked to do more than infer that the Tribunal member knew of the letter's return. It was submitted that the Court should impute knowledge of the letter's return to the Tribunal member irrespective of whether the Tribunal member actually had such knowledge. I do not accept that the doctrine of notice has any application in the context of the strict requirements of the Migration Act and the regulations made under it. I am not prepared to deem that the Tribunal member knew that the letter had been returned nor am I prepared to impugn the Tribunal member's honesty by inferring such knowledge merely from the fact of the letter being delivered to the Tribunal's premises. Despite this, the question still remains whether the Tribunal was in breach of its obligations under the Migration Act by making the decision in the way it did and, if so, whether the breach can be characterised as jurisdictional error. 19 Section 504 of the Migration Act gives power to make regulations. Relevantly it provides: (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: (a) … (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; (f) … (2) … (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. 20 On 26 November 1997 when the Tribunal made its decision, the regulations dealing with the service and receipt of documents included: 'Reg 4.41

(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;

(c) if the person has lodged an address for service under regulation 4.39, by posting it to, or leaving it at, that address; or

(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; or

(iii) by leaving it at that place of residence of the person with another person who apparently lives there and has apparently turned 16.

(2) It is sufficient compliance with a requirement to give or serve a document referred to in sub-regulation (1) if a facsimile or certified copy of the document is given or served in accordance with that subregulation.

(3) A document posted in accordance with paragraph (1)(d) must bear correct pre-paid postage and, if the document is posted to an overseas address, the postage must be the full airmail rate.

[Note:A document posted in accordance with this regulation is taken to be received at a time worked out under regulation 5.03].

(b) an invitation, notice, notification, statement or summons, if it is in writing.

(1A) This regulation applies to a document sent by the Minister, a Tribunal or a review officer to 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 applicant 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.' 21 Reg 4.41 sets out the manner in which a document, as defined in reg 5.01, may be served. In this case the invitation sent by the Tribunal was sent in accordance with the regulation. Although s 425 does not require an applicant to be notified in writing where, as in this case, the Tribunal choses to notify an applicant by letter, compliance with the regulation is, in my view, sufficient to show that the Tribunal has given an applicant a reasonable opportunity to exercise the rights given under s 425. More importantly reg 4.41(4) provides that a document posted in accordance with the regulation is to be taken to be received at a time that is calculated in accordance with reg 5.03. Even if reg 4.41 does not apply to an invitation sent pursuant to s 426, it is arguable that reg 5.03 would be independently applicable to such an invitation. 22 The narrow interpretation of reg 5.03 as applying only to notifications required by the regulations and not by the Migration Act, adopted by Moore J in Nguyen v Minister for Immigration and Ethnic Affairs (1996) 149 ALR 119 ('Nguyen') had been overtaken by the amendments made by Migration Regulation (Amendment) Statutory Rules 1997 No 109 (Cth) which commenced operation on 1 July 1997; see also Alkaab v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 375. In Ngyuen, Moore J also considered that the regulation was not intended to operate with reg 4.40 which deals with notification of a decision of the Tribunal. The express linking of reg 4.41 to reg 5.03 in the note following the reg 4.41 sufficiently indicates that this reasoning does not apply. I note in passing that, after the decision in Ngyuen, a similar note was appended to reg 4.40 by the 1997 amendment referred to above. 23 In Dawai v Minister for Immigration and Multicultural (1997) 71 FCR 379Moore J considered whether the word 'received' in reg 5.03 is to be treated only as referring to receipt at the address to which it is sent or whether it is to be treated as reception by the applicant at that address. His Honour observed that the former construction (receipt at the address) is suggested by the structure of the regulation. His Honour noted, however, that the use of the word 'received' in reg 4.41(4) appeared, in context, to be a reference to receipt by a person. Reg 4.41(4) was repealed by the 1997 amendments and replaced by the note to the regulation as set out in [20] above. The note is in identical terms to reg 4.41(4). In my opinion his Honour's observation is correct as is the application of reg 5.03 in the circumstances of that case. 24 The Tribunal's letter was dated 24 October 1997. If reg 5.03 applies the appellant is deemed to have received it at the address to which it was sent seven days after that date, namely 31 October 1997, provided that it was sent within seven days of 24 October 1997. There was no direct evidence as to the date on which it was sent however given that the earliest of the three dates on the envelope is '27.10' (see [6] above) it can be inferred that the letter was sent within the seven day period referred to in reg 5.03(2). If the above analysis is correct any argument based on the Tribunal's failure to notify the appellant of the opportunity to attend the hearing on 18 November 1997 falls away. 25 I am aware that there is considerable authority in the decisions of single judges of this Court that is contrary to the above analysis. Those cases are reviewed by Hely J in Uddin at [19]-[34]. After discussing the authorities Hely J said at [30]-[31]: 'If one approaches the matter as a question of principle, one would conclude that s 425 requires the RRT to give the applicant a real opportunity to appear before it and give evidence, and that it is a necessary, but perhaps not a sufficient, step in the performance of that duty, that actual notice (subject, perhaps, to the regulations) of the s 426 entitlements be given to the applicant. … In the present case, the opportunity for which s 425 makes provision was claimed to have been extended to the applicant by posting a letter addressed to the applicant, admittedly at a notified address for service, but when the RRT knew of facts which ought to have alerted it to the fact that a letter sent in that way might well not come to the applicant's attention. If, as was likely to be the case, a letter sent in that way did not reach the applicant, then it cannot meaningfully be said that the RRT has given to the applicant the opportunity which s 425 requires to be extended to him.' 26 His Honour's comments are pertinent to the issue of whether in the circumstances described there has been a failure to comply with the procedures laid down by the Migration Act. While not disagreeing with his Honour's comments in relation to the circumstances in Uddin, I have real doubts that, properly construed, the Migration Act as it was at the relevant time required the Tribunal to refrain from making a decision if, for reasons beyond its control, it was unable to contact an applicant in order to notify him or her of the opportunity afforded by s 425. 27 In any event I am of the view that were the Tribunal to be in error in making a decision in such circumstances, this could not be characterised as a jurisdictional error. Inability to contact an applicant by sending a registered letter to the only address provided by the applicant cannot, in the absence of any knowledge that the letter has not reached the applicant, be a denial of procedural fairness.

Alleged failure of the Tribunal to comply with s 418(3) 28 The appellant also takes issue with Raphael FM's rejection of his claim that the Tribunal failed to comply with s 418(3) which provides as follows: 'The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.' 29 In the absence of evidence supporting the appellant's claims there is no basis to interfere with his Honour's decision on the application to review.

Alleged denial of procedural fairness and challenge to finding on credibility 30 In the Federal Magistrates Court the appellant also challenged the Tribunal's finding as to his dubious credibility and claimed that the Tribunal had denied him procedural fairness in a number of ways. He submitted that the Tribunal had considered further information, in particular independent country information, that he would have commented on if he had appeared before the Tribunal. This claim is really an offshoot of the claim considered above at [15]-[27]. As his Honour stated, 'If the Tribunal has given the applicant a reasonable opportunity to appear and the applicant has not appeared then the Tribunal is entitled to take into account any additional evidence which it has and which it may well have put to the applicant if the applicant had attended. That was the purpose of the summons. The summons was predicated upon the Tribunal not being satisfied on the papers before it that the applicant was a refugee and entitled to a visa within the context of the Migration Act.' 31 In my view both of these claims were thinly disguised invitations to his Honour to take issue with the Tribunal's findings on the merits. His Honour's decision to reject this invitation was correct. 32 For the reasons set out above the appeal in this matter must be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone .

Associate: Dated: 11 December 2003 Solicitor for the Appellant: Ms M Byers.