SZNZL v Minister for Immigration and Citizenship & Anor [2010] HCATrans 336 (10 December 2010)

Last Updated: 22 December 2010

[2010] HCATrans 336

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S168 of 2010

B e t w e e n -

SZNZL

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2010, AT 11.06 AM

Copyright in the High Court of Australia

MR S. SIVALOGANATHAN: If the Court pleases, I appear for the applicant. (instructed by Audix Legal)

MR G.R. KENNETT, SC: May it please the Court, I appear for the first respondent. (instructed by Australian Government Solicitor)

GUMMOW J: There is a submitting appearance from the Tribunal.

MR SIVALOGANATHAN: Thank you, your Honour. The application for special leave turns on the construction of what is, in effect, an important deeming provision contained in section 52(3) of the Migration Act – that is extracted at page 58 in the application book – and its relationship to sections 66 and 494B of the same Act. These later sections set out the methods by which a document may be served by the Minister.

The question of law here is of public importance because section 52 governs all communications between all visa applicants and the Minister throughout the nation. It also self-evidently applies to communications concerning an applicant’s address for service. In the context of the Migration Act, the address for service is an extremely important piece of information which determines the Minister’s obligations and notification and which in turn under the Act determines when an applicant’s appeal rights run and therefore, ultimately, the substantive rights in the applicant.

GUMMOW J: What do you say as to the specifics pointed out on page 73 in paragraphs 18 and 19?

MR SIVALOGANATHAN: My submission, your Honour, is that a very close textual reading is required of section 52(3). That section effectively creates the fiction of deeming any communication to the Minister to be not a communication received by the Minister unless it is actually received. In my submission, in a situation where the section does not specify an onus of proof or a standard of proof to demonstrate that the communication is received, a very tight analysis needs to be made of any such communication.

In this case the file note that was relied upon by the Minister simply states an address was received. It does not state whether the address was the address for service or whether the address was an address that the applicant sought to remain for more than 14 days. There is nothing in that that states the context of the communication. There is nothing in that that confirms authentication of the communication. There was no evidence adduced in the lower courts about the context of the communication.

The Act itself in section 424A draws a distinction, quite clearly, between the residential address and an address for service and in construing section 52(3), I would ask your Honours to consider the context of the kind of applicant who will be communicating with the Minister. Applicants, such as in this case, a refugee applicant, who has no fixed abode, who is unemployed and who is ultimately reliant on the generosity of others for residence and accommodation, such persons are likely to be in that context, itinerant, and therefore it is quite logical for the Act to draw the distinction between an address for service and an address of residence.

In this case the courts below engaged in what, in my respectful submission, was a speculative exercise about what the import of the file note was. In my submission, that is the very problem that section 52(3) was designed to remedy. It was designed to remedy the situation where there may have been a communication to the Minister but it was not in the written prescribed by the Act and where there is uncertainty about whether in fact it was received. The question as to whether in fact the communication was received relates not only to the fact of receipt but also to the actual nature and content of what has been communicated.

In this case there is uncertainty about whether the address communicated was in fact communicated for the purposes of it being an address for service. In my respectful submission, under those circumstances, the deeming provision should apply and deem the communication not to have been received. For that reason, in my submission, the findings of the lower courts were not correct because they did not strictly apply the deeming provision.

The fact that formality is required in any communication with the Minister is re-emphasised in other sections of the Act such as section 104 of the Act which refers to changes in circumstances to be notified. That section also requires such a change to be notified in writing, as does regulation 2.13. It is noteworthy that under 52(2) a way of communicating is deemed to include any associated process for authenticating identity. Why should this matter be considered by the High Court? Because, in my submission, it raises an important general principle of statutory interpretation in relation to a deeming provision that affects every visa applicant in the country.

It is cast in mandatory terms for the need for written communication between the applicant and the Minister and determines the extent to which both the applicants and the Minister may rely on non-written communications. In my submission, there are clearly two purposes served by that; one is formality to minimise a potential for human or procedural error which can be important in a context such as this where the fact in issue determines a critical jurisdictional fact because it determines whether in fact

the appeal right ran from the day the letter was sent to that particular address and whether he in fact lodged his application within time.

It also serves the function of authentication. It minimises the potential for the Minister to rely upon information received by misunderstanding, missed communication, mistakes or fraud by requiring some measure of written authentication of the information received. The potential for misunderstanding or miscommunication is exacerbated in cases such as this where the applicant’s English is extremely limited and may not be experienced in dealing with government agencies such as this. There is always the danger that information received orally is misunderstood, oversimplified or not recorded accurately.

In my submission, the interests of justice would be served by granting special leave to resolve a point which is likely to affect the way the Department and the first respondent administers all visa applications and the way courts below are likely to decide future cases. Removal of any ambiguity in the application of section 52 would assist in ensuring that all applicants are allowed a minimum measure of procedural fairness in relation to the information that can have important jurisdictional implications in the individual case. Failure to apply section 52(3) strictly may mean the problems that it was designed to avoid would not only attend this particular case, but are likely to continue and multiply in future cases.

In this case it is the applicant’s right to have his very asylum claim review that is at stake and that, in my respectful submission, heightens the significance of the application. I would just make one comment regarding the written communications of the first respondent, paragraph 13, where it is stated under subsection (a):

The effect of s 52(3) is that:

(a) If the communication is not in fact received by the Minister . . . the Minister is not deemed to have received it –

That, in my respectful submission, is a meaningless interpretation of the section because if the Minister had not received the communication, there is no need for a deeming provision. The Minister simply did not receive the communication. The whole point of the section is to deem what has been received by the Minister where there is uncertainty as to what communication has been received. Unless there is anything further, those are my submissions, your Honour.

GUMMOW J: We do not need to hear from you, Mr Kennett.

There are insufficient prospects of success on an appeal to this Court in this matter to warrant a grant of special leave. Special leave is refused with costs.

AT 11.16 AM THE MATTER WAS CONCLUDED