Rahman, Mohammed Bazlur v Minister for Immigration & Multicultural Affairs

[1998] FCA 654

MOHAMMED BAZLUR RAHMAN v. MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and R.A. FORDHAM, CONSTITUTING THE REFUGEE REVIEW TRIBUNAL
No. NG 627 of 1996
FED No. 654/98
Number of pages - 13
Administrative Law - Judicial Review - Migration - Evidence
(1998) 155 ALR 465

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

EINFELD J

Administrative Law - Judicial Review -remaining review jurisdiction under the Administrative Decisions (Judicial Review) Act and s39B of Judiciary Act over migration/refugee cases

Migration - whether valid notification of the primary decision where decision sent to last known address of applicant when department knew that the applicant was no longer at that address - department had notice that a solicitor was representing the applicant - choice of method of service to be made in good faith

Evidence - whether no evidence to support Tribunal finding that the department was not advised that the applicant had legal representation

Judiciary Act 1903 s39B

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958 ss5(9), 412 (formerly 166BA), 475 & 476, Part 8

Migration Reform Act 1992 s39

Migration Laws Amendment Act 1993

Migration Legislation Amendment Act 1994

Migration Regulations 1989 regs 35 & 173

Migration (Review) (1993) Regulations reg 43E

Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363

Curragh Queensland Mining Ltd v K. Daniel (1992) 34 FCR 212

Lowerson & Repatriation Commission (1994) 50 FCR 252

Dawai and Voravora v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 379

Kamkar v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 424

Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446

Rodwell v Minister for Immigration, Local Government and Ethnic Affairs [1992] 28 ALD 195

Mahboob v Minister for Immigration and Ethnic Affairs [1996] 135 ALR 693

Nguyen v Mr M.W. Gerkens constituting the Refugee Review Tribunal (unreported, Full Court of the

Federal Court (Tamberlin, Sundberg and Marshall JJ), 24 April 1997)

Shrestha v Minister for Immigration and Multicultural Affairs (unreported, Sackville J, 13 October 1997)

SYDNEY, 4 July 1997 (hearing), 1 June 1998 (decision)

#DATE 1:6:1998

Counsel for the Applicant: Lucy McCallum

Solicitor for the Applicant: Michael Jones of Parish Patience

Counsel for the Respondent: Robert T Beech-Jones

Solicitor for the Respondent: G Peek of Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application for review be allowed with costs

2. The matter be remitted to the Refugee Review Tribunal for hearing on the merits.

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

EINFELD J

FACTUAL BACKGROUND

This case raises difficult and novel issues. The applicant, Mohammed Bazlur Rahman, was born in Bangladesh. He arrived in Australia on 30 July 1989, apparently without a visa, and was granted a temporary entry permit which was later extended to 2 February 1990. His application on 12 January 1990 for permanent residency on humanitarian grounds, which also included an application for permission to work in Australia, was refused on 5 September 1990. Later that month, on 17 September, Maurice May & Co, solicitors, advised the Minister's department that they were acting for the applicant in relation to his permanent residency application. In December 1990 they advised the department by telephone that the applicant intended to lodge an application for refugee status, officially called by regulations a refugee (permanent) entry permit, which he did on 17 January 1991. On 19 January 1991 the solicitors wrote to the department to advise that the application for refugee status had been lodged and to foreshadow another application on different grounds. The letter stated:

Dear Madam re MR MOHAMMED BAZLUR RAHMAN File no: #N89/7534 In accordance with our Mr Muriniti's undertaking to you we herewith confirm that on 15 January 1991 our client filed an application for refugee status. Our client also proposes to file an application to remain permanently in Australia, this will be lodged as soon as we have received copies of our client's formal qualifications from his country and references etc. from his previous employers. Yours faithfully MAURICE MAY & CO

Despite this intervention by lawyers representing the applicant, a letter from the department dated 20 February 1991 acknowledging receipt of the application for refugee status was sent to the applicant at Flat 6, 151 Todman Avenue, Kensington, the address given by the applicant on his application. The letter was returned to the department marked "Not at this address". No alternative address was given on the envelope. Another letter from the department dated 1 May 1991 refusing the applicant permission to work was also sent to the same address and returned marked "NO LONGER AT THIS ADDRESS". The applicant stated in his application to the Tribunal for review that he had asked his solicitors to notify the department of his change of address but that they either failed to follow these instructions or regarded their letters as supplying a new address for service and contact.

On 20 November 1991 a draft decision refusing the refugee application and a covering letter were sent to the Kensington address. The letter advised the applicant that he had 21 days to respond to and comment on the recommendations against the granting of refugee status. The letter was returned unclaimed to the department. On 8 January 1992 a full year after lodgment, the applicant's refugee application was refused (the primary decision) The departmental letter of that date notifying Mr Rahman of the refusal, which outlined the reasons for the decision and advised him of his right to seek its review, was sent by certified mail to the Kensington address but was returned to the department marked "Unclaimed".

A further year later, on 7 January 1993, a deportation order against the applicant was made and on 3 August 1993 he was arrested at Room 4, 125 Todman Avenue, Kensington and given a copy of the January 1992 letter refusing refugee status. The evidence does not reveal how long the applicant had been at that address or what arrangements he had made for his mail after he left 151 Todman Avenue. It appears that the department staked out the new apartment after advice from the police.

The applicant asserted that this occasion was his first knowledge of the failure of his application. Six days later, on 9 August 1993, an application for review of the primary decision by the Refugee Review Tribunal (the Tribunal) was filed by Parish Patience, solicitors, on behalf of the applicant. Almost three years later, on 24 June 1996, the second respondent, a member of the Tribunal, found that the applicant had been "notified" of the refusal within the meaning of the applicable regulations and accordingly that the Tribunal had no jurisdiction to review the refusal to grant the applicant refugee status (the Tribunal decision) because it was filed well outside the 28 days from notification allowed for such applications.

On the basis, then, that the operative factor in the case was the primary decision, the applicant filed in this Court, on 27 July 1996, an application for its review by this Court under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) and section 39B of the Judiciary Act 1903 (s39B). For good measure, his application also sought review of the Tribunal decision under Part 8 of the Migration Act 1958. The primary decision was challenged for denial of procedural fairness. The Tribunal decision was challenged on the grounds of error of law and no evidence to support the conclusion reached.

REVIEW JURISDICTION OF COURT

By virtue of the Migration Reform Act 1992 (No. 184 of 1992 assented to on 7 December 1992) which removed the Court's jurisdiction to deal with migration decisions under the Judicial Review Act and s39B, a denial of procedural fairness is no longer available as a ground of review of migration decisions. However, the applicant sought to invoke some of the Judicial Review Act grounds by virtue of the operation of section 39 of the Migration Reform Act 1992 which bears the heading "Transitional - refugee applications":

If: (a) an application for (i) a determination by the Minister that a person is a refugee within the meaning of the Principal Act as in force immediately before 1 September 1994; . . . . was made before that date; and (b) before that date, the application has not been finally determined (within the meaning of the Principal Act); then, on and after that date, the provisions of the Principal Act (including provisions relating to review of decisions) apply as if the application was an application for a protection visa (within the meaning of the Principal Act as in force on that date).

The "Principal Act" as referred to in this section was the Migration Act 1958 as amended. Section 39 was originally enacted in a somewhat different form by Act No. 184 of 1992 and then fixed the relevant date for final determination as 1 November 1993. That date was changed to 1 September 1994 by the Migration Laws Amendment Act 1993 (No. 59 of 1993). Section 39 was changed by the Migration Legislation Amendment Act (No. 60 of 1994) to its current form and it commenced on 1 September 1994.

Section 5(9) of the Migration Act 1958 (prior to Act No. 60 of 1994 it was section 4(12)) defines the meaning of "finally determined":

(9) For the purposes of this Act, an application under this Act is finally determined when either: (a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or (b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

Parts 5 and 7 deal with review by the Refugee and the Immigration Review Tribunals. The effect of section 39 is therefore to give retrospective operation of the 1992 and 1993 amendments to the Migration Act 1958 to all applications for refugee status which had been lodged by but not "finally determined" on 1 September 1994.

In Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693, Justice Lehane undertook a brave and thoroughgoing review of this very difficult maze of amendments. His Honour held thatwhere a person applied to the Tribunal before 1 September 1994 for review of a refusal of refugee status, but the Tribunal had not made a decision by that date, the application was not "finally determined" and thus that the Federal Court no longer has jurisdiction under the Judicial Review Act and s39B to review such a decision when subsequently delivered, and can only carry out the review permitted by Part 8 of the Migration Act 1958 (prior to Act No. 60 of 1994 it was Part 4B).

The Minister submitted in the present case that because the application for review, having been made in August 1993, was still incomplete and before the Tribunal on 1 September 1994, the decision had not been "finally determined" and thus fell within the principle decided by Mahboob. The applicant contended that because the Tribunal decided that it had no jurisdiction to review the primary decision on the ground that the period within which a review could be instituted had ended before the application for review was made, the primary decision was thus the "final determination" of this matter within section 5(9)(b).

THE PRIMARY DECISION

If it is found that the Court has jurisdiction under the Judicial Review Act to review the primary decision, the applicant requires an extension of time for filing his application for review as it was filed 4[Omega] years or 2 years 10 months out of time, depending on whether the decision was first notified to the applicant when he was arrested in August 1993 or by the department's letter of 8 January 1992 which was returned unclaimed. The relevant factors for an extension of time would be:

* does the applicant have an acceptable explanation of the delay?

* is there any irreparable prejudice to the respondent if an extension is granted?

* is it fair and equitable in the circumstances to extend time?

* does the substantive application have arguable merit?

If it is accepted that the applicant did not learn of the decision until his arrest long after the time had expired, and considering that he filed his application very shortly after his arrest, there is an acceptable explanation of the delay in doing so. The Minister did not argue irreparable prejudice or any unfairness or inequity if an extension was granted. The merits of the case, however, require a consideration of the applicant's arguments on the substantive issue. Apparently no extension of time is required for s39B applications.

The applicant submitted that procedural fairness was denied because he was not given the opportunity to reply to matters that were going to form the basis of an adverse decision. It must be said that on the face of the material before the Court, the parts of the draft decision which the applicant wished to clarify did not seemingly play a major part in the decision. Nonetheless, the applicant's argument would call for close scrutiny because the primary decision long preceded 1 September 1994 and if the applicant is correct, the full range of Judicial Review Act and s39B grounds and remedies would be available, including a denial of what used to be called natural justice. On the other hand, as the Tribunal's jurisdiction involves a full review on the merits, it is not necessary to deal with the attack on the primary decision if the Tribunal's decision that it had no jurisdiction to conduct such a review can be successfully impeached, albeit on the much more limited grounds available to this Court since the Migration Reform Act 1992.

THE TRIBUNAL DECISION

The applicant relies on the jurisdiction of the Court pursuant to Part 8 of the Migration Act 1958 which authorises this Court to review certain decisions:

475(1) Subject to subsection (2), the following decisions are judicially-reviewable decisions: (a) decisions of the Immigration Review Tribunal; (b) decisions of the Refugee Review Tribunal; (c) other decisions made under this Act, or the regulations, relating to visas.

The grounds upon which a person aggrieved by a decision may seek a review of a decision are found in section 476:

476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision. 476(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

The applicant put his case for review on two of these statutory bases:

1. the decision involved an error of law by incorrectly interpreting or applying the law to the facts contrary to subsection (1)(e)

2. there was no evidence or other material to justify the making of the decision within the meaning of subsection (1)(g) in that the decision was based on the existence of a particular fact and that fact did not exist (subs (4)(b))

The second respondent's decision that the Tribunal was barred by statute from entertaining a review of the primary decision was based on two findings of law:

1. That, as he said:

Review applications made after 1 July 1993 must be given to the Refugee Review Tribunal within 28 days after notification. Applications received outside that time limit are not valid and can not [sic] be considered.

2. That the applicant's application for review was filed much longer than 28 days after he was duly "notified".

Section 166BA(1) (now section 412(1)) stated at the relevant time:

An application for review of an RRT-reviewable decision must: (a) be made in the approved form; and (b) be given to the RRT within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and . . .

At the time the review application was "given" to the Tribunal, the Migration (Review) (1993) Regulations relevantly stated:

43E(1) For the purposes of paragraph 166BA(1)(b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal. (2) A period mentioned in subregulation (1) commences on the date on which the applicant is notified of the decision to which the application relates, and ends at the end of: (a) in the case of an application given to the Tribunal by or for an applicant (i) in custody under the Act on that date; or (ii) detained in a processing area on that date; 7 working days (beginning with the first working day that occurs on or after that day); or (b) in any other case - 28 days.

The Tribunal concluded, and the applicant does not dispute, that (p5):

There is no discretionary power available to the Tribunal to determine a matter where an application has been lodged in excess of twenty eight days after the notification of the decision.

There is also no doubt that if the applicant was first "notified" of the decision on 3 August 1993 when he was arrested, the Tribunal had jurisdiction to entertain a review on the merits based upon his application of 8 August 1993 that it do so. The question on this appeal is therefore when the department gave a valid notification. The applicable regulations, found in the Migration Regulations 1989, were and, as far as I can see, remain:

Notice of decision on application for visa or entry permit 35.(1) Where the Minister refuses to grant an entry permit the Minister must give the applicant written notice of that decision: (a) by posting the notice to the latest address for service provided by the applicant in relation to the application; or (b) by posting the notice to the residential address provided by the applicant in the application; or (c) by giving the notice to the applicant personally or to a person duly authorised to receive documents on behalf of the applicant; or (d) by leaving the notice at the last known place of residence of the applicant with a person apparently an occupant of that place and apparently not less that 16 years of age. (2) Where notice of decision is served on the applicant under subregulation (1), service is to be taken to be effected as if the notice was a document to which subregulation 173(1) or (2) applies. Time when service takes effect 173.(1) Subject to this regulation, a document served on a person is to be taken to be received by the person on the day on which the document: (a) is given to, or left with, the person; or (b) is given to, or left with, another person authorised by the first-mentioned person to receive documents of that kind on his or her behalf; or (c) where these Regulations provide for such service--is left at the place of business or residence of the person to be served with another person apparently an occupant of that place and apparently not less than 16 years of age; (2) Subject to subregulation (4), if a document is served on a person in accordance with this Division by post, service is to be taken to be effected: (a) if the service is within Australia--on the expiry of 5 working days after the day of posting;

The Tribunal decided that it had no jurisdiction to hear the review of the primary decision because (at p 6):

(t)he letter and decision which was posted to the Applicant's address on 10 January 1992 was a valid notification of the refugee status

If this is the correct legal finding, the application for review, required to be made within 28 days of notification, was made nineteen months after notification, and the Tribunal's finding that it had no jurisdiction to entertain the matter was correct. The second respondent's reasoning was as follows (at pp 6-7):

These documents were sent by certified mail to the last address provided to the Department by the Applicant. This was given as his residential address and his address for service on all applications he made to the Department. A solicitor signed the Applicant's application for refugee status as a witness to his statutory declaration where the applicant's same address is given. A solicitor is one of the categories of persons who may witness a statutory declaration. Submissions from the Applicant's current solicitor in respect of jurisdiction were that the Applicant had a former solicitor in regard to his application for refugee status and that the Applicant was not notified until 3 August 1993. It is, however, clear that, even if the Applicant was represented by a former solicitor, the Department was never advised of this and the only address for notification was that provided by the Applicant. The above regulations, which were the regulations in effect at the time the letter and decision were mailed, show that a document such as notification of a refugee status or DPTEP decision is properly served if it is sent to the applicant at the address of his last known place of residence (r.169 and r.35 respectively). Further it is taken to have been served five working days from the date of posting (r.73(2)) [sic - presumably r.173(2)]. The notification was therefore made five working days after 10 January 1992. The application for review, required to be made within 28 days of notification was made nineteen months after notification. Since the application for review was clearly made outside of the prescribed time the application is invalid and I have no jurisdiction to consider the decision to reject and [sic] application for refugee status

With respect, it does not seem that regulation 169 has any relevance here because it appears only to apply where no other provision is made for service of documents.

"ERROR OF LAW"

The applicant submitted that this reasoning involved an incorrect interpretation of the applicable law in that the mailing of a letter to the residential address provided by the applicant in the application [reg 35(1)(b)] does not comply with the Act and regulations when it is known that mail sent to that address previously had been returned without reaching the applicant and that the applicant was represented or assisted by a solicitor whose address was known to the department. Alternatively, the applicant submitted that the second respondent's reasoning involved an incorrect application of the law to the facts as found by him in that the letter notifying the applicant of the primary decision was not mailed to the applicant's last address as known to the department.

In their letters of September and December 1990 and 19 January 1991, Maurice May & Co advised the department that they were acting for the applicant. Two of the letters referred to the applicant expressly as "our client". The 17 September letter also said: "We act for Mr Rahman ....". They all amounted to a clear indication that the applicant was represented by that legal firm, and by clear implication that all dealings with him should henceforth take place through it. The 19 January letter apparently resulted from a conversation, presumably on the telephone, between the particular solicitor handling this matter and Ms Christine Grimm of the department's Chatswood office, thus demonstrating the department's acceptance of that requirement. Hence, the applicant submitted, the "latest address for service provided by the applicant in relation to the application" within regulation 35(1)(a) was his solicitor's office. Alternatively, it was said, the letters should have been taken to have notified the department that Maurice May & Co were "duly authorised to receive documents on behalf of the applicant" within regulation 35(1)(c).

Two departmental files existed in relation to the applicant's status in Australia: file N89/7534 relating to the application for permanent residence and file 91/64474 (also called A91/64474) relating to the application for refugee status. Because the refugee status file 91/64474 was created only a few days before the solicitor's letter of 19 January 1991, the solicitor would presumably not have been aware of the fact that this file existed, still less of its number. Thus that letter said that it concerned file N89/7534 and was apparently filed there.

It is not disputed that the original Kensington address was supplied by the applicant on his application form and that service by the department to that address fits the method of notification in regulation 35(1)(b). The question to be determined is whether the Tribunal erred in concluding that the department, having been notified by virtue of the returned letters that mail sent to Kensington was not reaching the applicant, and by his solicitor's letters of September and December 1990 and January 1991 that he was representing the applicant, was under no obligation by regulation 35(1) to send its correspondence to the solicitor.

The obvious fundamental purpose of regulation 35 is to ensure that an applicant receives notice of an adverse decision. That the Minister "must" give an applicant written notice underscores the manifest intention of the legislature that these decisions be brought to the attention of applicants. On the other hand, recognising that there are practical limits to the capacity to bring a decision to an applicant's attention, parts of regulation 173, for example, contemplate that notice given in accordance with regulation 35 might not in fact come to the attention of an applicant. For under regulation 173 a decision is taken to be received by an applicant on the day that it is given to a person other than the applicant who has been authorised by the applicant to receive documents on his behalf. Similarly, if a decision is posted to the mailing address given by the applicant on the application, service is deemed to be effective five working days after the day of posting if the address is within Australia. It does not matter for this case but it seems to me that deemed service will only be necessary and operative if or when an applicant is not served personally.

These situations do not require the applicant to have actual possession of the written decision: Rodwell v Minister for Immigration, Local Government and Ethnic Affairs [1992] 28 ALD 195; and with reference to the equivalent 1996 regulations, see Nguyen v Mr M.W. Gerkens constituting the Refugee Review Tribunal, Full Court of the Federal Court (Tamberlin, Sundberg and Marshall JJ), unreported, 24 April 1997 per Justice Sundberg at page 5. Indeed, in a number of cases before the Court, service was found to accord with the regulations, and due notice found to have been effected, despite the fact that the various applicants, through little or no fault of their own, did not gain actual knowledge of the decision until much later.

One example is Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446, where the letter containing the decision was held by Australia Post at the wrong post office for more than a month. Others are Dawai and Voravora v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 379 and Shrestha v Minister for Immigration and Multicultural Affairs (Sackville J, unreported, 13 October 1997). Another case with some relevance to this subject matter is Kamkar v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 424: a decision was sent to the applicant's address where it was signed for by a person other than the applicant and not brought to the applicant's attention, and sent also to the applicant's solicitor who did bring it to his attention. The application for review was filed within 28 days of the latter but outside the 28 days from the former. It was held that the deemed notice provision did not apply to a notification of a decision and that actual notification was necessary. Hence the review application was within time. See also Van Chuong Nguyen v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 437.

Regulation 35 provides four alternative methods for giving notice of a decision to refuse refugee status but gives no guidance as to which alternative is to be used in any given set of circumstances. In Rodwell at 197, Justice Olney thought that the choice of method for service must by implication be made in good faith. I respectfully agree. To choose a method of service that is known to be very unlikely to effect service when another method of service, required by practice and ethics if not by law, is almost certain to succeed frustrates the very purpose of the provisions for service and amounts to a breach of the implied duty to make the choice in good faith. In my opinion, the regulation should not be interpreted to allow the frustration of its very purpose by the giving of a mandatory notice to an address where it is or should be known that the person no longer lives. It cannot be within the Parliament's intention that a method of service can be chosen, at the whim or by the inadvertence or accident of the server, which would distinctly ensure that the document in question would not come to the receiver's attention, when one of the other prescribed methods would be much more likely to ensure that it did. Even though the letter dated 19 January 1991 from Maurice May & Co was almost 12 months old when the department sent the decision to the Kensington address, and there had been no other contact from Maurice May & Co in the intervening period, it seems to me that regulation 35 required service on those solicitors and not posting to a former address which had been shown to be stale and inappropriate a long time before.

In my view, the second respondent erred in his interpretation of regulation 35 and in the application of the undisputed facts to that regulation. The 28 days for giving the application for review of the primary decision to the Tribunal, as mandated by section 166BA(1), commenced on 3 August 1993. Because the application was given within that period, the Tribunal had jurisdiction to review the primary decision.

"NO EVIDENCE"

Pursuant to section 476(4)(b) of the Migration Act, the "no evidence" ground of review specified in section 476(1)(g) is made out if the person making the decision based the decision on the existence of a particular fact, and that fact did not exist. This odd form of legislative expression is not limited to this legislation but I continue to find it confusing: Lowerson v Repatriation Commission (1994) 50 FCR 252 at 261-2. If something is a fact, it must have existed at some time. What is presumably meant is that the relevant fact is unproved or is persuasively contradicted by other evidence. The applicant submitted that the finding of the second respondent that the department was never advised that he was represented by a solicitor was contrary to the evidence and this finding was critical to its conclusion that it did not have jurisdiction to review the decision. The applicant relies on the following passage in the Tribunal's decision (page 7):

It is, however, clear that, even if the Applicant was represented by a former solicitor, the Department was never advised of this and the only address for notification was that provided by the Applicant.

The Tribunal also stated that (page 4):

(i)t is not disputed by either the Applicant or his representative that the Departmental file is a full and accurate record of all correspondence between the Applicant and the Department.

This comment was apparently a reference to the fact that the solicitor's letter of 19 January 1991 was not filed in the refugee application file. There is actually no evidence as to whether it was or was not in that file and thus whether the concession referred to by the second respondent, if made, was wrong in fact. However, in my view, any concession of this genre was meaningless because section 418 of the Migration Act requires the department to provide to the Registrar of the Tribunal all documents or parts of documents that are in its possession or control and are considered to be relevant to the review of the decision. Because it expressly concerned the applicant's application for refugee status, the letter of 19 January 1991 should thus have been before the Tribunal. If it was not, no "concession" by the applicant could establish that it was.

I respectfully agree with Chief Justice Black (with whom Justices Spender and Gummow agreed) that the evidence available to the Court to decide this issue is not limited to the material before the Tribunal or to the predominant reason for the decision under review. In Curragh Queensland Mining Ltd v Daniel & Ors (1992) 34 FCR 212, in reference to the equivalent section in the Judicial Review Act [s. 5(3)(b)], his Honour stated at 223-4:

Section 5(3)(b) must contemplate that an applicant will be able to establish that a particular fact did not exist, and that the applicant will be able to do so in circumstances where there was an absence of evidence or other material before the decision-maker to justify the making of the decision. It could hardly have been intended that an order of review would be available only where the non-existence of the particular fact could be established from the material before the decision-maker because, in order otherwise to make out the ground, that material itself must be deficient. Such a conclusion would impose, for no discernible reason, an even greater limitation than the concluding words of s.5(3)(b) require. If such were the intention, it would be expected that there would be express language confining the scope of the material available for proof of the non-existent fact and so enlarging the practical scope of the limitation. On the undeniable assumption that the ground provided for in s.5(1)(h) as elucidated by s.5(3)(b) was intended to be a ground that has practical content, I conclude that the requirement of establishing that a particular fact did not exist is to be satisfied by admissible evidence in court, where of course any ground must be made out, and that the evidence on the issue is not limited to material that was before the decision-maker.

See also the observations of Justice Lee in Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374.

That the letter was placed in the wrong file or was not duplicated for placement in the refugee file does not detract from the fact that the department knew that the applicant was represented by a solicitor with regard to his refugee application. This conclusion establishes that there was no evidence to justify the Tribunal's finding that the department was not advised that the applicant had legal representation and therefore had a new address for service. This finding need not be the single fact on which the Tribunal based its decision, but it must be critical to the making of the decision. I believe that it meets that criterion.

CONCLUSIONS

I hold that the Tribunal erred in law by finding that it had no jurisdiction to entertain the application before it because it was out of time. There was no evidence to support the Tribunal's finding that the applicant was duly notified of the decision on his application for refugee status when it was posted to his place of residence as shown on his application because it was, at least in part, based on the assertion that the department was not advised of the applicant's representation by a solicitor when the truth is that it was. The application for review is upheld with costs. The matter will be remitted to the Tribunal for hearing on the merits.