SZFOH v Minister for Immigration and Citizenship

Appellant's and his solicitor's participation in the Tribunal hearing 8 Nevertheless, on 9 August 2006 the Tribunal was served a written communication by way of a response to the hearing invitation from Mr Ejaz Khan, solicitor, purporting to be the authorised recipient. On 26 August 2006 Mr Khan sent to the Tribunal by facsimile a form of appointment of authorised recipient signed by the appellant and by somebody else indicating that Mr Khan was to be the appellant's authorised recipient. 9 The appellant attended the hearing conducted by the Tribunal on 28 August and gave evidence and made submissions. He also collected sound tapes of the hearing before the Tribunal. On 30 August 2006 the Tribunal gave the appellant lengthy particulars of information that it said would, subject to any comments made by the appellant, form the reason or part of the reason for deciding that he was not entitled to a protection visa. The appellant's advisor and now authorised recipient Mr Khan, provided those comments by a letter of 7 September 2006. 10 As indicated, the Tribunal handed down its decision on 1 October 2006 which affirmed the decision of the delegate.

Legislative provisions 11 Section 425 of the Act provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising unless, so far as presently relevant, the Tribunal considers it should decide the review in the applicant's favour on the basis of the material before it. 12 Section 425A(2) provides, so far as presently relevant, that such a notice of invitation must be given to the applicant by one of the methods specified in s 441A. Section 441A prescribes the methods by which a document is to be given to a recipient as given by hand, handing to a person at least 16 years of age at the last residential or business address, dispatched by pre-paid post or transmission by fax. Section 441G provides that if an applicant has given the Tribunal written notice of an authorised recipient, it "must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant." This provision is followed by a note in the following terms: "If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method." 13 Section 441G(2) provides: "If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document". Subsection (3) essentially provides that, while the applicant may vary or withdraw the appointment of an authorised recipient, the general intention is that there is to be only one authorised recipient.

Proceedings in the court below 14 Before the court below, the appellant argued that s 441G had not been complied with for two reasons. First, the fax to Ms Maher was not quite transmitted by facsimile within the meaning of s 441A(5) and secondly because the letter was posted to the firm Adrian Joel & Co and not the person named as the authorised recipient, namely, Ms Maher. The learned Federal Magistrate did not make factual findings about those matters, dismissing the application on the basis that, after 1 August 2006, there was no authorised recipient and, accordingly, the letter sent to the appellant at his last known residential address complied with the notification provisions of the Act. 15 In any event, his Honour decided that he would refuse relief in the exercise of his discretion because it was necessarily the case that the applicant had been actually notified and indeed had, after authorising a further recipient in connection with the review, attended the hearing. 16 No other attack was made on any aspect of the Tribunal's actions, hearing or decision.

(i) No evidence of abandonment of role by authorised recipient 17 No doubt it may be inferred that Ms Maher was, in 1998, an employee of those conducting the firm Adrian Joel & Co. However, in my opinion, his Honour was incorrect to conclude that Mr Joel's notification that he was no longer authorised to act in the proceedings was enough to constitute a withdrawal of the notice given in 1997 to the Tribunal. 18 The whole scheme of the Act is that there be a named individual who is to be the authorised recipient. Mr Joel never was that person. He did not purport to speak for Ms Maher nor for the purposes of the Act could he have done so unless specifically authorised by her. 19 It may possibly be that there can, for the purposes of the Act, simply cease to be an authorised recipient if it is clear beyond question that the person who was an authorised recipient has abandoned that role. But here there was no evidence as to Ms Maher's present position before the Tribunal. For all anyone knew, she may have been in business on her own account as an immigration agent and been able and more than willing to communicate with the appellant and to represent and assist him if he still wished her to do so.

(ii) Letter sent to authorised recipient? 20 The first argument of the Minister was that sending the letter to Adrian Joel & Co 225 Crown Street Darlinghurst was in fact sending it to the address given for Ms Maher. There is, however, no evidence that the letter was sent in an envelope which named the intended recipient as Ms Maher. Such information as is to hand suggests the contrary and, in my opinion, the appellant has produced just enough evidence to warrant the conclusion, absent any evidence on the point from the respondents, that the notice was posted simply to Adrian Joel & Co. There is a big difference between that and sending it to Ms Maher with the name Adrian Joel & Co and that firm's street address following. I think it should be concluded that the letter was not sent to the authorised recipient. 21 Another argument, more impressive for its ingenuity than for its substance, was put before his Honour and repeated before me, namely that what occurred was a dispatch of the invitation within the meaning of the Act: it was sent by pre-paid post provided it went to the address of the authorised recipient. It was said that the envelope is merely the means by which the document is dispatched. 22 A moment's reflection on the likely difference between the receipt of an envelope through the post in the name of a person, followed by the business name of the entity with which that recipient had been associated, rather than an envelope omitting the name of the intended recipient will indicate that Parliament was very unlikely to have intended other than a commonsense and efficacious interpretation of its requirements.

Discretionary matters 23 The principal submission of the Minister however is that, assuming a breach of the Act in that the invitation cannot be said to have been duly sent to the still authorised recipient, in the circumstances of this case such failure cannot possibly have made any difference to the decision and the Court should, in its discretion, withhold relief. The case is to be distinguished from others such as: SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199where there had been no appearance by the applicant at the Tribunal's hearing; Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181where the failure to reply to a notice of invitation to comment allowed the Tribunal to proceed to make a decision without further invitation to the applicant; and Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 where the appellant did not receive the invitation until a considerable time after it had been sent to and received by the authorised recipient because it had been addressed to the applicant care of the authorised recipient. Because the appellant was in fact fully heard and the Tribunal rejected the veracity of his claims it is a case where the "decision-maker was bound by the governing statute to refuse the application": SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ and separately Kirby J and Hayne J. 24 On the discretion point, the appellant chiefly relies on SZFOH 159 FCR 199 and Lee 159 FCR 181. In the latter case the Full Court considered discretionary relief and accepted a "forward looking" approach to the question of utility and futility. In SZFOH 159 FCR 199, Lee 159 FCR 181 was applied and the fact that the authorised recipient may have known of the notice, though the notification was irregular, was apparently held not sufficient to warrant a discretionary refusal of relief (cf Buchanan J at [60]). In Lee 159 FCR 181, as I understand it, the Court appeared to prefer the view given by Merkel J in a separate judgment in Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 165, favouring a "forward-looking" view. 25 However, the decision in SZBYR 235 ALR 609 was given on 13 June 2007 shortly after the decisions in Lee 159 FCR 181 and SZFOH 159 FCR 199 and in my opinion SZBYR 235 ALR 609 now provides authoritative guidance. As succinctly put by counsel for the Minister, the appellants in SZBYR 235 ALR 609 argued that the Tribunal had failed to comply with s 424A of the Act in dealing with issue A, but the Tribunal had also relied on issue B which was in itself an independent ground for refusing their application. At [29], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said: The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the tribunal's finding that their claims lacked the requisite convention nexus. The appellants' case, like Mobile Oil Canada Limited … cited in [Re Refugee Tribunal; Ex parte] Aala [(2000) 204 CLR 82 at [56]], was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse". (Footnotes omitted.) Hayne J likewise said at [91]: The Refugee Review Tribunal's finding that the appellants' claims lacked the requisite nexus with the Convention was inevitable. That being so, the appellants were not entitled to relief of the kind they sought. The discretion to grant that relief was to be exercised against them. (Footnotes omitted.) 26 Kirby J agreed that relief should be refused on discretionary grounds but on a narrower basis. His Honour took the view that "issue B" as counsel and I have called it, (the nexus issue in SZBYR 235 ALR 609) was on analysis the only reason for the Tribunal's decision and was sufficient. However, his Honour said at [87]-[89]: Once the foregoing conclusion became clear, it was immaterial ... to examine the extent of the default of the tribunal, if any, under section 424A ... Any such default could not have affected the decision of the tribunal for the reason that it accepted. An application for judicial review of that decision was therefore liable to dismissal on discretionary grounds. Discretionary refusal of judicial review must be exercised with care, particularly where the hypothesis of jurisdictional error is a possibility. However, in some such cases (of which this was one) invocation of the discretion is proper, prudent, economical and just. In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court's time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case. When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case. (Footnotes omitted.) 27 In my opinion those pungent observations of Kirby J are entirely applicable by way of analogy here.

Conclusions 28 Factors relevant to the exercise of discretion in this case are, it seems to me, first, the Tribunal's default was patently one of a mere clerical oversight rather than a studied misapplication of the law. Second, this is not a case where, simply, actual notice had also come to the attention of the appellant personally in his application before the Tribunal but there was no notice to any person authorised by him to be his desired recipient. Third, there was, in fact, notification to someone in whose understanding of the legal and practical implications of his litigious position the appellant had confidence. Fourth, here the appellant acted on that actual notice and in the event there was secured to him every right and opportunity of substance which s 441G envisaged for him. There was adequate and due notice of the hearing and an unmistakably clear and adequate opportunity to attend before the Tribunal and for him to put his case to it, all of which opportunities the appellant took up. 29 To set aside the Tribunal's decision and require reconsideration of the appellant's claims de novo would be, in my opinion, to allow the triumph of mere technicality over substance and would be, as Lindgren J observed in Giretti 70 FCR at 165, to put the appellant in a better position than if the technical error had not occurred. Bray CJ of the Supreme Court of South Australia was fond of saying that if the application of the law by courts, or its declaration, strayed too far from what reasonable and open-minded lay members of the community might see as correct, and sensible and just, then the application or declaration of the law is likely wrong. I do not suggest that lay notions of injustice should govern the exercise of discretion in this area, but I do feel that there are considerations in the public interest which justify not exalting technical errors to a tyrannical role where manifestly there is no question of substantial or practical injustice. 30 If my decision should not be in accord with Lee 159 FCR 181 and SZFOH 159 FCR 199, I believe any departure of mine from the reasoning in those cases is appropriate and warranted after SZBYR 235 ALR 609. I should add, however, that all the cases on exercise of discretion have to be closely examined in the light of their own facts. It is very easy to make remarks able to be read as nostrums for general application when really what the court is doing is seeking to explain the considerations which have weighed with it in the instant case. I have probably been guilty of the same thing here myself. I do not suggest that I would necessarily have decided Lee 159 FCR 181or SZFOH 159 FCR 199 differently, even after SZBYR 235 ALR 609. Their facts are not these facts. 31 The appeal will be dismissed with costs. 32 As to costs, it is put that the appellant's "substantive argument" has succeeded. This is not correct. I will not adjust the quantum sought by the Minister, which is $4,300. No suggestion was made that that amount is in any way unreasonable and to my mind, having regard generally to levels of legal costs presently prevailing, it is by no means unreasonable. Costs will be assessed in the sum of $4,300. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice MADGWICK.

Associate: Dated: 11 December 2007 Counsel for the Applicant: Mr A Kumar