The Authorised Representative Must be Given Documents

In a very important decision the Full Federal Court has found that the failure to given documents properly to the authorised representative will invalidate proceedings done in the absence of such a notice.  In SZIZO v MIAC [2008] FCAFC 122 (3.7.08) the authorised person was not a migration agent but the decision is just as applicable to migration agents.

The case has some complexity in that the authorised representative was an offspring of the applicant. The fact that the applicant because aware of the proceedings before the RRT was irrelevant to the finding that the wrong procedure was adopted as Lander J observed:

97 It should be only in exceptional circumstances that a Court should refuse to issue the constitutional writs once the Court has determined that the Tribunal had failed to comply with its imperative statutory obligations to an applicant seeking the review of a decision of the delegate refusing the applicant a protection visa. If it were otherwise, and the Court were required to inquire into the extent to which the failure by the Tribunal to comply with its statutory obligations to accord an applicant a fair hearing prejudiced the applicant, the imperative obligation imposed on the Tribunal might well be blunted.

It is important to set out the reasons in some detail in Lander J’s judgment:

62 By signing the application for review, all of the appellants, except the appellant husband, authorised the Tribunal to communicate with, relevantly, the appellant husband or his or her authorised recipient (if there was one). It was implicit in the authority, if there was an authorised recipient, that the Tribunal communicate with the authorised recipient.

63 The first respondent also contended that there is no obligation under s 441A to address the document at all and, in those circumstances, it would be sufficient to give a notice simply to a person’s address. I would reject that argument. The purpose of s 441A is to ensure, as far as reasonably practicable, that any document that the Tribunal must give or wishes to give an applicant (or indeed any person) will come to the attention of that person. The purpose of the section is to ensure that the Tribunal adopts one of the methods in the section.

64 S. 441A(4) does not contemplate that the Tribunal would send a letter to an address without indicating who is intended to be the recipient of the letter. Indeed, s 441A(1) and the heading to s 441A speak of giving a document to a person. Subsection (4) assumes that the letter will be addressed by indicating the person to whom it is sent and that person’s last known address for service or last residential address. The fact that the subsection does not mention that the recipient’s name and description should be included on the envelope is not surprising. It would be assumed by almost everyone that where one sends a document by post to another person the envelope in which the document is contained will indicate the person (or corporation perhaps) who is the intended recipient and that person’s residence. Such a construction is consistent with the relevant definition of “address” in the Macquarie Dictionary, “a direction as to name and residence inscribed on a letter, etc”.

65 It was argued that by sending the document to the eldest daughter at the same address that the Tribunal had complied with s 441G because the document had been sent to her address. I reject that argument. The notice was addressed to the appellant husband. It may be assumed that the envelope was addressed in the same way. In my opinion, notwithstanding that the notice was sent to the authorised recipient’s address, it cannot be said that the Tribunal discharged its obligation under s 441G(1) and gave the notice to the authorised recipient instead of the appellant.

66 In VEAN of 2002 v MIMIA (2003) 133 FCR 570, the Court was called upon to consider s 494D(1) of the Act which is, relevantly, in the same terms as s 441G. In that case, the applicant had nominated an authorised recipient. The Tribunal sent its decision to the appellant care of the authorised recipient. The Court held at 579:

What is clear is that s 494D(1) is enlivened only when the relevant document, in this instance the letter of 3.1. 2002, was “given” to the authorised recipient. It must be given to the authorised recipient by one of the means provided for in s 494B. Clearly the addresses contemplated then in s 494B(4)(c)(i) and (ii) for dispatch by prepaid post are those applicable to the authorised recipient, and not some other addresses such as those of the appellant or of some other person. The letter of 3 January 2002 was not addressed to the authorised recipient. It was addressed to the appellant, care of the authorised recipient. The factual consequence was that the authorised recipient did not consider the letter was addressed to her. She notified the appellant of the letter addressed to him at her address, and the appellant in fact arranged the collection of the letter from the post office. We do not consider the letter of 3.1.02 was, in the circumstances, given to the authorised recipient. The respondent’s contention to the contrary may be tested by reference to s 494B assuming the letter was to be given to the appellant. If the letter had been addressed to another person (not the appellant) at care of the appellant’s last address for service (see s 494B(4)(c)), it could not be said to have been given to the appellant. That is clearly not the intention of the legislature about how s 494B(1) and (4) should operate.

67 In my opinion, the position is plain and that is that the notice given under s 425A was given only to the appellant husband and not to the authorised recipient. That, in my opinion, means that the Tribunal did not comply with its obligations under s 441G of the Act, which requires that where an applicant has nominated another person to be the authorised recipient the Tribunal must communicate with that person.