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MIGRATION – procedural fairness – obligation on Refugee Review Tribunal (RRT) to notify appellants of invitation to appear – appeal from a decision of a Federal Magistrate dismissing an application for review of an RRT decision – where appellants claimed they were not notified of proceedings before RRT – where RRT had sent numerous letters to last address for service provided by appellants – whether appellants had sent notification of change of address to RRT – finding by Federal Magistrate that notice of change of address sent to wrong address by appellants – finding by Federal Magistrate only logical finding open on evidence accepted by Federal Magistrate

SZAEG v Minister for Immigration and Multicultural and Indigenous Affairs [

SZAEG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 177 (7 July 2004)
Last Updated: 7 July 2004

FEDERAL COURT OF AUSTRALIA


SZAEG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 177



MIGRATION – procedural fairness – obligation on Refugee Review Tribunal (RRT) to notify appellants of invitation to appear – appeal from a decision of a Federal Magistrate dismissing an application for review of an RRT decision – where appellants claimed they were not notified of proceedings before RRT – where RRT had sent numerous letters to last address for service provided by appellants – whether appellants had sent notification of change of address to RRT – finding by Federal Magistrate that notice of change of address sent to wrong address by appellants – finding by Federal Magistrate only logical finding open on evidence accepted by Federal Magistrate























SZAEG and Others v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 894 of 2003




NORTH, DOWSETT and LANDER JJ
7 JULY 2004
ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 894 OF 2003


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT


BETWEEN: SZAEG
FIRST APPELLANT

SZAEH
SECOND APPELLANT

SZAEI
THIRD APPELLANT

SZAEJ
FOURTH APPELLANT

SZAEK
FIFTH APPELLANT

SZAEL
SIXTH APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: NORTH, DOWSETT and LANDER JJ
DATE OF ORDER: 7 JULY 2004
WHERE MADE: ADELAIDE (HEARD IN SYDNEY)


THE COURT ORDERS THAT:

1. The appeal is dismissed.





Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 894 OF 2003


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT


BETWEEN: SZAEG
FIRST APPELLANT

SZAEH
SECOND APPELLANT

SZAEI
THIRD APPELLANT

SZAEJ
FOURTH APPELLANT

SZAEK
FIFTH APPELLANT

SZAEL
SIXTH APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: NORTH, DOWSETT and LANDER JJ
DATE: 7 JULY 2004
PLACE: ADELAIDE (HEARD IN SYDNEY)


REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from an order of a Federal Magistrate made on 4 July 2003 dismissing an application brought by the appellants for a review of a decision of the Refugee Review Tribunal (RRT).

2 The appellants, who are husband and wife, and their four children, are all nationals of Lebanon. We shall refer in these reasons to the first appellant as the husband because it is only his actions and evidence which are relevant on this appeal. The appellants arrived in Australia on 15 December 1997, except for the youngest child who was born in Australia.

3 On 21 July 2000 the appellants lodged an application for protection (Class XA) visas with the then Department of Immigration and Multicultural Affairs. On 14 August 2000 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant protection visas. On 13 September 2000 the appellants applied for a review of that decision.

4 At the time the appellants sought a review of the decision of the delegate of the Minister by the RRT the appellants gave their address as 40 Morgan Street, Merrylands NSW 2160. On 13 September 2000, the date upon which the application for review was received, the RRT wrote to the husband stating, inter alia:

‘It is very important to tell the Tribunal in writing if you change your telephone number, home address or your address for service (the address where you want letters from the Tribunal sent). The Tribunal will acknowledge any change of address information you provide. If we are unable to contact you, or if you do not respond to our letters, you may lose your opportunity to appear before the Tribunal and give evidence on your case.’
5 Some time prior to August 2001, the RRT wrote to the husband at the address given by the appellants but the letter was returned to the Department on 8 August 2001 with the notation: ‘Left Address’.

6 On 8 May 2002 the RRT, by registered prepaid post, wrote to the husband, again at the same address, advising that the RRT had considered the material relating to the appellants’ application but was not prepared to make a favourable decision on that information alone. The appellants were invited to attend a hearing of the RRT to give oral evidence and to present arguments in support of their claims. The letter indicated that the hearing would take place at 10.30 am on Tuesday, 11 June 2002 at Level 20, Pacific Power Building, 201 Elizabeth Street, Sydney NSW 2000.

7 The letter invited the appellants to complete a document, which was enclosed, ‘Response to Hearing Invitation’ and return it to the RRT by 24 May 2002.

8 That letter, together with the enclosure, was returned to the RRT on 13 May 2002 with two notations: ‘Unknown at Address’ and ‘Left Address’.

9 The RRT keeps a document which is entitled ‘CMS Case Notes’. That document records communications with applicants. In this case, it recorded the receipt of the unclaimed letter of 13 May 2002. Apparently, on 14 May 2002, someone within the RRT made a movement check and ascertained that the appellants were still in Australia. The appellants, however, had no adviser and the phone number provided by the appellants to the RRT was no longer connected.

10 On 13 June 2002 the RRT again wrote to the husband at the same address advising that its decision would be handed down on 2 July 2002. On 18 June 2002 that letter was also returned to the RRT, this time, with the notation: ‘Left Address’.

11 The RRT handed down its decision on 2 July 2002 in which it affirmed the decision of the delegate of the Minister not to grant protection visas.

12 On 15 August 2002 the husband provided the RRT with details of a change of address. The new address given was 93 Hampden Road, Wentworthville 2145. At the same time, the husband sought a copy of the decision.

13 Unless s 425(2) of the Migration Act 1958 (Cth) (the Act) applies (and it did not in this case) the RRT must invite an 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.

14 The RRT must provide an applicant with a notice of any hearing: s 425A. Section 441A(4) of the Act provides that that notice may be sent by prepaid post to the last address for service provided by the applicant to the RRT. It was the respondent’s contention that the last address provided to the RRT was the address provided on the application for review.

15 The husband, however, contended that he provided the RRT with a new address for service in October 2000.

16 The husband said that in early October 2000 he sent a fax to the RRT notifying it of the change of address of the appellants to 22 Pearson Street, Wentworthville, which are premises owned by his friend.

17 The husband said the fax was sent from the Parramatta Post Office. He received a receipt confirmation for the fax from a person employed at the post office. Mr Mohammed Sammer Altakrity deposed in an affidavit that he was present when the husband sent a fax to the RRT and, in particular, was present when the fax was handed to the counter officer.

18 The respondent tendered an affidavit of Brendan Fox, an officer of the Department of Immigration and Multicultural and Indigenous Affairs, who said that no change of address was notified to the RRT.

19 The respondent also tendered an affidavit of Pamela Summers, the District Registrar of the RRT, who exhibited the activity management reports from the facsimile machine at the RRT.

20 Ms Summers said that a facsimile was received on Wednesday, 13 September 2000 at 14:20 hours from the Parramatta Post Office. That facsimile was the appellants’ original application for review. She said, however, there was no record in those activity reports of an incoming facsimile from the Parramatta Post Office in October 2000. She also said that she had inspected the RRT file relating to the appellants ‘and there is nothing contained in those materials to indicate that any notification of a change of address for the applicant was received during the period after he lodged his Application for Review on 13 September 2000 until he lodged a Change of Address form with the Refugee Review Tribunal on 15 August 2002’.

21 The Federal Magistrate found that both the husband and Mr Altakrity, who were cross-examined on their affidavits, were credible and reliable witnesses.

22 The husband maintained that he sent the fax advising of his change of address in early October 2000. He said that he received a ‘receipt confirmation’ at the time that the fax was sent. If that were so, and as we have said the husband was accepted as a credible witness, then it must be that the fax was received by the party to whom the fax was sent at that time.

23 The Federal Magistrate accepted the husband’s evidence that he and Mr Altakrity did attend the Parramatta Post Office in October 2000 with the intention of sending a fax to the RRT to notify of the appellants’ change of address. The Federal Magistrate noted that the husband had previously sent a fax from the Parramatta Post Office to the RRT, being the original application for review. He found that that fax was received by the RRT on 13 September 2000.

24 It was put by the husband that the RRT’s records indicate that, for a period on 25 October 2000, the facsimile machine at the RRT did not receive facsimiles. It was suggested that the machine must have been out of order for a period of time and that might account for why the RRT did not receive the communication.

25 There are two reasons, however, why that cannot be so. First, the husband’s evidence, which was accepted, was that he sent the fax in early October 2000. Secondly, he received a receipt confirmation. If the RRT’s facsimile machine did not receive the facsimile, which was sent from the Parramatta Post Office, the husband would not have received the receipt confirmation.

26 The Federal Magistrate found that it was possible that the fax was sent but not sent to the right address. He said:

‘I find, on the balance of probabilities, that the fax sent from the Parramatta Post Office in October 2000 was sent to some address unknown but it was not received by the RRT. It follows that the RRT was not notified of the applicant’s change of address because no change of address notification was "given" to the RRT.’
27 The Federal Magistrate held that, because the RRT was not notified of the change of address, it was not possible to argue that the RRT breached s 425(1) or s 425A of the Act. It followed, he said, that it could not be said that the RRT proceedings were procedurally unfair.

28 The appellants argued on this appeal that the Federal Magistrate was wrong to find that, on the balance of probabilities, the notice of change of address was ‘sent to some address unknown but it was not received by the RRT’.

29 In our opinion, the finding made by the Federal Magistrate was the only logical finding available if, as he did, he accepted the evidence given by the husband himself.

30 The husband said that he sent the fax in early October 2000. Accepting that evidence, that would mean that whatever malfunction occurred on 25 October 2000 was irrelevant. He said he received a fax confirmation whilst he was at the Paramatta Post Office. Accepting that to be so, that means that the person to whom the fax was addressed received it at that time. That would also indicate that the recipient’s fax machine was not malfunctioning at the time that the fax was sent.

31 In our opinion, accepting, as the Federal Magistrate did, that the RRT in fact did not receive the facsimile, that finding of fact was open to him. In our opinion, it was not only open but it was the most logical finding upon the accepted evidence.

32 Mr Altakrity said, in his cross-examination, that he accompanied the husband to the Parramatta Post Office and completed a two-page form which was provided to them by the post office. He said that he filled out the form in accordance with the instructions given to him by the husband. He said he was questioned about to whom the facsimile was addressed:

‘Who did you address the thing to, or was it just given to the post office? --- I just filled it out like, I didn’t know where it was going when we went down there – not too sure – if it was Immigration or something like that.

You don’t recall who you addressed it to? --- No, to Immigration or something.’ [AB 92]
33 The husband was also cross-examined as to whom the notice was given:

‘Did you have a letter to be sent to the Tribunal already prepared when you went to the post office? --- No, no, I didn’t have one.

So you went without anything and you just – what did you do then? --- Just went to the post office and pick [sic] up change of address form, fill it out and give it to the lady, she faxed it. [AB 84]

...

Was it a Department of Immigration Address Form or was it a form to tell the post office you were changing your address? --- No, not the Post Office, I sent it to the Department of Immigration because I done [sic] this before with my solicitor when I was appearing for renewing my visa, the working visa and you get the same form.

So when you did it before you sent it to the same fax number as you did before? --- Yes.

Where did you get that fax number from? --- From [person’s name – not transcribed] ... was my solicitor, the one who was doing the working visa for me.’ [AB 85]
34 That evidence supported a finding that the notice was given to the Department of Immigration rather than the RRT.

35 In those circumstances, in our opinion, it is not possible to argue that the Federal Magistrate’s finding was wrong. Whilst that finding stands, the decision in unimpeachable.

36 In our opinion, the Federal Magistrate’s decision has not been shown to be wrong and the appeal should be dismissed.


We certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.


Associate:

Dated: 7 July 2004



Counsel for the Appellants: M Jones



Solicitor for the Appellants: Michael Jones



Counsel for the Respondent: S Lloyd



Solicitor for the Respondent: Sparke Helmore



Date of Hearing: 27 February 2004



Date of Judgment: 7 July 2004





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