SZGGG v Minister for Immigration

[2006] FMCA 528

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGGG v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 528

MIGRATION – Refugee – invitation to hearing – prescribed periods of notice – procedural fairness under general law – jurisdictional error – delay – unclean hands – acquiescence – refusal to exercise discretion – application dismissed.

Migration Act 1958, ss.426A, 425, 425A, 441G, 441A(4), 441C(4), 494C, 441B, 494D, 425A(3), 424A, 422B, 65, 36(2)
Migration Regulations 1994, Regulation 4.35D(b)
Evidence Act 1995, ss.63, 63(2)(a)

Abebe v The Commonwealth (1999) 197 CLR 510
Bin Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Chief Executive Officer of Customs v Tony Longo Pty Ltd (2001) 52 NSWLR 458
Cooper as liquidator of Wanted World Wide (Australia) Ltd (in liq) v Commissioner of Taxation (2004) 210 ALR 635
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26
Favelle Mort Ltd v Murray (1975) 133 CLR 580
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Australia) Ltd (1949) 78 CLR 389
Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221
Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA
Minister for Immigration & Multicultural & Indigenous Affairs v Huynh (2004) 211 ALR 126
Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550
NAAT v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 196 ALR 376
NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184
NAST vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
R v Australian Broadcasting Tribunal & Ors; Ex parte Fowler & Ors (1980) 31 ALR 565
Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491
Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215
SZDOG v Minister for Immigration [2004] FMCA 972
SZEMB v Minister for Immigration [2005] FMCA 448
VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630

Applicant: SZGGG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1188 of 2005

Judgment of: Nicholls FM

Hearing date: 14 November 2005

Date of Last Submission: 15 December 2005

Delivered at: Sydney

Delivered on: 13 April 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. Burnett, Mr. Chami

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the fixed amount of $3500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1188 of 2005

SZGGG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 6 May 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
   27 February 2002, and handed down on 21 March 2003, to affirm the decision of a delegate of the respondent Minister made on 12 October 2000 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.

2. The applicant is a national of India who arrived in Australia on
   21 January 1998 and lodged an application for a protection visa on
   31 August 2000. His claims are set out in his application, reproduced at Court Book (“CB”) 1 to CB 25, and in particular at CB 16 to CB 17. His claims for protection centre on his involvement in student politics through membership of a college student association. The applicant claimed that the association was involved in demonstrations and strikes against government policies and that these demonstrations usually ended in clashes with police. He claimed that he and other students were targeted, and that he was particularly vulnerable because of his involvement with weight lifting, as the police harassed him whenever he was in training. He further claimed that the police harassed his family, and that he was concerned that the police would lay false charges against him. As a result of these activities he claimed that his parents organised for him to study in Australia. The application for review to the Tribunal is at CB 36 to CB 39. The only claim made by the applicant in answer to the question as to why he had made this application was:

   “I fear for my safety if I returned to India.”

3. The Tribunal's decision record is reproduced at CB 45 to CB 52. The applicant had been invited to a hearing before the Tribunal (this is at the heart of the applicant's ultimate complaint as it emerged before me and will be dealt with at length below). Following the non-appearance of the applicant at the scheduled hearing, the Tribunal proceeded, after making a number of enquiries, to make a decision pursuant to s.426A of the Migration Act1958 (“the Act”) without taking any further additional action to enable the applicant to appear before it.

4. The Tribunal’s decision record reveals that it looked at the applicant's claims as they had been put before it, and found that on the basis of a lack of detail in the evidence before it, it could not be satisfied that the Indian authorities had an adverse interest in the applicant for any reason. Therefore, it could not be satisfied that there was a real chance the applicant would suffer persecution for a Refugee Convention reason if he were to return to India (CB 51.7). On that basis the Tribunal affirmed the delegate’s decision.

   The Application to the Court

5. The applicant made a number of general assertions in his originating application to this Court filed on 6 May 2005. On 22 August 2005 he filed an amended application:

   “A.    The matter be remitted to the Migration Review Tribunal (in context this is clearly a reference to the Refugee Review Tribunal) to be considered according to Law. There was jurisdictional error for these reasons:

   1. The RRT failed to consider information in the Country Report of February 2001 which supports my claims. Although reported as particularly acute in Jammu and Kashmir, the report outlines incidents of “continued detention throughout the country of thousands arrested under special security legislation…”(Green Book 55); “deficient police methods and training” (GB 56); “Extrajudicial killings…” (GB 56); “The prevalence of torture by police in detention facilities throughout the country is supported by the number of cases of deaths in police custody…Delhi's Tihar jail is notorious to the mistreatment of prisoners with 1 of every 11 custodial deaths occurring there… 21-year-old Devinder Singh…”(GB 69-70). Also refer to section “d. Arbitrary Arrest, Detention, or Exile” (GB 72) and section “b. Freedom of Peaceful Assembly and Association… On March 27, Calcutta police beat primary school teachers participating in a peaceful procession to the legislative assembly, after holding a meeting on demands they had of the state government… police actions were unprovoked (GB 80).

   2. Given the copious information in the independent reports, the RRT failed to appreciate my situation or my claims and fear for my safety: Dranichnikov (FCA) 1801; 197 ALR 389.

   3. I did not receive any letters from the RRT or my agent.

   4. In my application under section 48B of the Migration Act 1958, the Minister did not consider my application personally. In fact, the officer did not refer my application to the Minister at all.

   5. In the light of my particulars, I would like my case referred to several pro bono lawyers as it is very important to me.

   B.      Costs and any other order the Honourable court deems appropriate.” [Errors in original]

   I will deal further with these issues below.  

   The First Court Hearing

6. There were two hearings in this matter before me. At the first, on
   27 September 2005, Ms. Burnett appeared for the respondent Minister. The applicant appeared in person but was assisted by a “friend”, Ms. Frugtniet, who was not legally qualified, but was given my leave to sit with the applicant and to consult with the applicant if so required by him. At his hearing the applicant sought an adjournment so that he could “obtain more documents from India.” When pressed about the nature of these documents the applicant indicated that they went to the issue of his original claims and evidence that he was harassed by the police in India, subjected to constant police monitoring and that the police were acting to “put criminal charges on me”.

7. I explained to the applicant that these documents appeared to go to the merits of his refugee claims, and that such documents were not of the type to show legal error on the part of the Tribunal. I further explained to the applicant that unless there was anything else that he could say about the documents, that they did not appear to be relevant to the proceedings before this Court, and that this was not a basis upon which I could allow an adjournment. The applicant had nothing further to say in this regard and the adjournment request, on this basis, was refused.

8. The applicant did however, in his request for an adjournment, raise the issue of an “incorrectly” addressed letter from the Tribunal to his migration adviser. This was a reference to the letter of invitation to a hearing before the Tribunal. While this was not put forward as a basis for the adjournment request, I agreed with the applicant that this could be one of the critical questions to be determined in his case. I note that this is an expansion of the complaint raised in the applicant’s amended application [at point 3.] that he did not receive any letters from the Tribunal or his agent.

9. At the first hearing Ms. Burnett for the respondent also raised unwarrantable delay on the part of the applicant in bringing these proceedings, as an independent basis in the exercise of the Court’s discretion for dismissing the application. In relation to both this issue, and the issue of the alleged failure on the part of the Tribunal to “correctly” address the letter sent to the applicant’s migration agent, I gave the parties an additional opportunity to file and serve further submissions, and any relevant evidence, in support of these issues. I was not satisfied that the material put before me at that time had adequately presented and considered all relevant matters. This was confirmed given the material subsequently filed, particularly as annexed to the affidavits of Ms. Burnett of 5 and 10 October 2005. I also indicated, at that time, an opportunity for a further hearing if required.

   The Second Court Hearing, Admissibility of Evidence

10. At the conclusion of the period for further submissions and evidence it became apparent that a further hearing date would be needed. That was set down for 14 November 2005 (“the second hearing”). At this hearing Mr. Chami appeared for the respondents and the applicant appeared in person, again with the assistance of his “friend” (Ms. Frugtniet).

11. Including submissions filed after that second hearing I have before me:

    For the applicant:

    1)The application for review and affidavit, affirmed by the applicant on 5 May 2005 and filed 6 May 2005.

    2)Submissions, filed 25 May 2005.

    3)The amended application, filed 22 August 2005.

    4)An affidavit, affirmed by the applicant on 27 September 2005, and supporting submissions, filed 27 September 2005.

    5)An affidavit, affirmed by the applicant on 4 October 2005, and supporting submissions, filed 5 October 2005.

    6)A further affidavit, affirmed by the applicant on 10 October 2005, and supporting submissions, filed 10 October 2005.

    7)Supplementary submissions, filed 14 November 2005.

    8)Further written submissions filed 28 November 2005.

    9)Further written submissions filed 15 December 2005.

12. In regard to the admissibility of the evidence contained in the affidavits listed above:

    1)The applicant (with the assistance of his “friend”) indicated at the second hearing before me that he only intended to proceed and rely on his affidavits of 4 and 10 October 2005.

    2)In relation to the affidavit of 4 October 2005 Mr. Chami objected to paragraphs 13 to 17 inclusive on the basis of relevance. These paragraphs relate to the obtaining of documents to “support the merits of my application for a protection visa” and a submission that the matter be remitted to the Tribunal. I upheld Mr. Chami’s objection on that basis.

    3)In relation to the affidavit of 10 October 2005 Mr. Chami objected to the totality of the affidavit, but in particular paragraphs 5 to 10 on the basis of hearsay and relevance again. I upheld his objection in relation to these paragraphs. I note that this evidence did not come within the exception for hearsay evidence in civil proceedings, contained in s.63 of the Evidence Act 1995 (“the Evidence Act”). Mr. Chami for the respondent indicated that he did not object to the tendering into evidence of the annexure to that affidavit. The applicant indicated that in any event, in his view, that was the critical part of the affidavit, a submission with which I agreed. The annexure is a copy of a “Return to Sender” postal advice which, subsequently it was agreed by the parties, related to the Tribunal’s invitation to hearing letter sent to the applicant’s residential address.

13. For the Respondent I have:

    1)An outline of submissions, filed 20 September 2005.

    2)The affidavit of Sharon Anne Burnett, a solicitor in the employ of the respondent’s solicitors, sworn on 5 October 2005.

    3)Supplementary submissions, filed 5 October 2005.

    4)The affidavit of Sharon Anne Burnett, sworn on 10 October 2005, and Exhibit marked “SAB-1” filed on 10 October 2005.

    5)Further outline of submissions filed 28 November 2005.

14. In regard to the admissibility of the evidence contained in the affidavits listed above:

    1)The applicant objected to paragraphs 4, 5, 6, and 7 of the affidavit of Sharon Anne Burnett sworn 5 October 2005. These paragraphs relate to the annexures to the affidavit:

    a)A copy of the Tribunal’s relevant registered post records.

    b)A letter of 31 January 2002 from the Tribunal addressed to the applicant.

    c)The Tribunal’s record from its “Case Management System” as it related to the applicant.

15. The applicant’s objections (put through his “friend”) were:

    1)Paragraph 4:

    The objection appeared to be that the matters asserted were not “in its entirety” and “selective”. This appears to relate to the applicant’s view (as expressed by his “friend”) that Ms. Burnett’s evidence was “deficient” in that it made no reference to the “Return to Sender” postal advice in relation to the invitation to hearing letter sent to the applicant at his residential address in 2002. The applicant’s (and his “friend’s”) concern is understandable. This document, despite its obvious relevance, was not included in the Court Book filed on 10 June 2005. It did not “appear” from the respondent’s side until Ms. Burnett’s affidavit of 10 October 2005. Even then the document appeared merely as an annexure to the affidavit at p.29, out of sequence, given the documents at either side of it, and without any apparent presentation or explanation as to its relevance to the Tribunal’s letter of invitation to the hearing. In any event the respondent (through Mr. Chami at the second hearing) conceded that the Tribunal’s letter of invitation of 2002, sent to the applicant at his home address, had been returned to the Tribunal as undeliverable.

    2)Paragraph 5:

    The applicant objected on the basis of the relevance of the annexure to which paragraph 5 relates. As the document is the Tribunal’s letter of invitation to the hearing, a central issue in this case, I admitted this paragraph and the annexure.

    3)Paragraph 6:

    The applicant objected on the basis of relevance. Mr. Chami for the respondent successfully relied on s.63 of the Evidence Act and the exception to the hearsay rule in civil proceedings (where the maker of that representation is unavailable). Mr. Chami also relied on s.63(2)(b) of the Evidence Act.

    4)Paragraph 7:

    The applicant’s objection was that the annexure to which paragraph 7 relates was “deficient” in that it contained only a file note and “not the whole file”. I admitted this paragraph and the annexure on the basis of its relevance to a central issue in this case, and on the basis that, in any event, the objection (without anything further) was not aimed at the document itself but to the applicant’s (essentially his friend’s) view that there was, or could have been, more (unspecified) documentation which the respondent could put before the Court. The objection was not about the relevance of the document in any event.

16. In relation to Ms. Burnett’s affidavit of 10 October 2005 the annexures to this affidavit comprise documents relevant to the applicant, but going to a “second” application for a protection visa, lodged by the applicant on 15 November 2004, and consequent dealings with the first respondent’s Department, the Migration Review Tribunal, and this Court (in relation to another application). The documents post-date the Tribunal’s decision, but are relevant to the issue of delay in commencing proceedings before this Court as they relate to the period between the date of the Tribunal’s decision and the applicant’s current application to this Court. The applicant’s “friend” appeared to object, again not on this issue of relevance, but on the basis that this bundle of documents allegedly went to show that Ms. Burnett had not provided all relevant documents at “the appropriate time”. The applicant (through his friend) sought to cross-examine Ms. Burnett to ascertain whether other (unspecified) relevant documents existed.

17. The applicant’s objection to this material, as expressed by his “friend” before me, was that this material could not be put into evidence because it would be “unfair” to put in material “that never existed before”. I understood this to be a reference to the Court Book, and that this material should have been included in the Court Book, but had been “excluded”. Clearly this material was in existence at the time of filing of the Court Book and could have been included at the time. While the relevance of some of the material (with the clear exclusion of the “Return to Sender” postal advice referred to in paragraph 15.1 above) perhaps with the benefit of hindsight, could be said to have been seen as relevant at the time and should have been included. But for the most part (given that the case on both sides had not been, in my view, comprehensively prepared, the relevance only became clear after the first hearing before me. The submission that this material “never existed before” in its literal sense is clearly not made out. In the sense that the material was not put forward prior to the first hearing in these proceedings, the issue is whether there is any resultant prejudice to the applicant. I cannot see that not admitting this material simply on the basis that it was not included in the Court Book resulted in any unfairness to the applicant, as the applicant was subsequently given ample opportunity to put in any other evidence, and make submissions, in reply. Nor for that matter could I see the “omission” of this material from the Court Book as a sufficient reason for the applicant’s friend to engage in a “fishing expedition” with Ms. Burnett. Nor could I see how Ms. Burnett could assist further when her evidence went only to the issue of submitting to the Court these documents contained in various files, records and registries. If the applicant sought to challenge what was contained in the annexed documents, then it was always open to him to bring evidence to challenge the authors of those documents, or provide explanation. For example, it was always open to the applicant to bring evidence from his migration agents.

Relevant Issues

1. At the conclusion of the second hearing before me, it was clear that the relevant issues for consideration in this matter were:

   1)Whether the Tribunal failed in its statutory duty to invite the applicant to a hearing before it.

   2)Whether the requirements of common-law procedural fairness were met by the Tribunal in relation to the invitation to the hearing.

   3)Whether the Court should exercise its discretion to grant relief in the event of a finding of jurisdictional error by the Tribunal in light of unwarrantable delay and the applicant’s actions and conduct.

   The additional material filed by both parties subsequent to the second hearing before me specifically focused on these issues.

2. The material before me relevantly shows, in relation to the above issues the following sequence of events:

   1)The applicant arrived in Australia on 21 January 1998 as a student, and applied for a protection visa on 31 August 2000. When this was refused on 12 August 2000 he subsequently applied to the Tribunal on 10 November 2000 for review of this decision.

   2)In January 2002 the Tribunal determined that it was not able to make a favourable decision on the information that had been put before it, and further determined to invite the applicant to a hearing on 22 February 2002 so that the applicant could give evidence and present arguments in support of his claims. To achieve the purpose of enabling the applicant to appear before it the Tribunal prepared a letter which is reproduced at CB 42 to CB 43. Another copy of this letter (with relevant postal advice) is at “SAB 2” of the affidavit of Ms. Burnett of 5 October 2005.

   3)This letter was sent to the applicant's migration adviser (Kamlesh Singh) to an address (Mt Waverley, VIC) which did not correspond with the address provided by the applicant for the migration adviser in his application for review (South Clayton, VIC) (CB 37). The Mt Waverley, VIC address was the address provided by the agent in a facsimile “cover sheet” that accompanied the application for review to the Tribunal (CB 35).

   4)Ultimately, the applicant did not attend the hearing as scheduled. The Tribunal proceeded to make a decision pursuant to s.426A of the Act on 27 February 2002, and handed down its decision on
   21 March 2002.

   5)Notification of its decision was sent to the applicant’s migration adviser (at the Mt Waverley, VIC address), and to the applicant at his last provided residential address (Darlinghurst, NSW- the same residential address to which the letter of invitation to the hearing was sent) (CB 44).

   6)By letter dated 15 November 2004 another migration agent (Robert Bock) acting on behalf of the applicant, lodged with the first respondent's Department a “second” application for a protection visa (see SAB-1 to the affidavit of Ms. Burnett of 10 October 2005 at pages 1 to 26).

   7)At the time of this application the applicant was held in Silverwater Prison “about to be charged with a criminal offence”. The Minister was asked to consider this application as a “NEW CLAIM”. Significantly this application for a protection visa is expressed to be “under section 48B” (SAB-1 to the affidavit of Ms. Burnett of 10 October 2005 at pages 1 to 26).

   8)Section 48A of the Act provides that a person [“non-citizen”] refused a protection visa may not make a further application for a protection visa. Section 48B of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may determine that s.48A does not apply in relation to a particular person. This power may only be exercised by the Minister personally.

   9)This “application” (really an attempt to lodge a further application) was refused on 10 December 2004 on the basis that the “further application” did not meet the relevant Ministerial Guidelines for referral to the Minister for consideration (See SAB-1 of the affidavit of Ms. Burnett of 10 October 2005 at page 27).

   10)On 14 December 2004 the applicant applied to the Minister’s Department for a Bridging Visa Class E (Subclass 050). By that time the applicant had been taken to, and was being held at, the Villawood Immigration Detention Centre (CB 53). This was refused on 17 December 2004.

   11)The applicant applied for review of that decision with the Migration Review Tribunal. The Migration Review Tribunal decision record (affirming the decision under review) is at pages 37 to 101 of SAB-1 to the affidavit of Ms. Burnett of 10 October 2005.

   12)On 14 January 2005, the applicant sought review of that decision in the Federal Magistrates Court (see pages 30 to page 36 of SAB-1 to the affidavit of Ms. Burnett of 10 October 2005, and further see the Court Book in that matter reproduced at pages 51 to 101).

   13)On 3 May 2005, Barnes FM dismissed this application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (“the Rules”) (lack of appearance by the applicant) (see page 102 of SAB-1 to the affidavit of Ms. Burnett of 10 October 2005).

   14)On 6 May 2005 the applicant then filed his application for review currently before me relating to the Tribunal decision of
   27 February 2002.

   The Applicant’s Complaint to the Court

3. The respondent pressed that I dismiss the application on the basis of unwarrantable delay, and that this is a course of action that does not require the merits of the case to be examined. For reasons that will become apparent (particularly as they relate to the time of the alleged delay) I have opted to look at the applicant’s complaint. The issue of delay, and the applicant’s actions in coming to this Court, remain relevant but I will consider these matters in the context of the exercise of the Court’s discretion to grant relief, given the matters that follow.

4. The one substantive issue raised and pressed by the applicant at the hearings before me is that the Tribunal failed in its statutory obligation to provide the applicant with a fair hearing, and an opportunity for a fair hearing.

5. The applicant's position before this Court is that he did not receive the Tribunal's letter of 31 January 2002 inviting him to a hearing before the Tribunal on 22 February 2002. Relevantly, the following can be discerned from the material before me:

   1)The applicant's application for review to the Tribunal shows that he nominated Kamlesh Singh, a migration agent, authorised to act for him in relation to his application for review. (Such nomination at that time however, would not have been made in the context of an “authorised recipient” as this is understood in s.441G of the Act as Division 7A of Part 7 of the Act, of which s.441G is part, did not become operational until 10 August 2001: 9 months after the application was made. However, I do note that the respondent appears to proceed on the basis that this section, when it became operational, did have the effect of rendering the applicant’s migration agent as his authorised recipient for the purposes of that section).

   2)The address given by the applicant in the application form as the agent’s address was “South Clayton, Victoria”. The covering letter from the migration agent (being the facsimile cover sheet attaching the application for review) (CB 35) shows that the migration agent provided an address in “Mt. Waverley, Victoria”.

   3)The letter inviting the applicant to a hearing was sent to his migration agent addressed to the Mt. Waverley, not South Clayton, address.

   4)The letter was also sent to the applicant at his “Darlinghurst NSW” address, which was the last known residential address provided to the Tribunal by the applicant and his migration adviser.

   5)The respondent now concedes that this letter (the letter to Darlinghurst NSW) was returned to the Tribunal prior to the Tribunal making its decision, and was therefore not personally given to the applicant.

   6)There is no evidence before me that the letter sent to the migration agent was returned to the Tribunal as “undeliverable”. Nor significantly, beyond saying that this letter was sent to the “wrong address”, does the applicant say that the migration agent did not receive this letter. Nor, as it was open to the applicant to do so, has he brought, or attempted to bring, any evidence before the Court from the agent (Kamlesh Singh) as to show that the letter was not received.

6. The legislation relevant to the Tribunal’s obligation to invite an applicant to a hearing is that set out at ss.425 and 425A of the Act.

   “Section 425- Tribunal must invite applicant to appear:

   (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2) Subsection (1) does not apply if:

   (a)    the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

   (b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)     subsection 424C(1) or (2) applies to the applicant.

   (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

Section 425A- Notice of invitation to appear:

(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2) The notice must be given to the applicant:

(a)    except where paragraph (b) applies–by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.

(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4) The notice must contain a statement of the effect of section 426A.”

1. The above provisions (except for s.425A(2)) were the relevant legislation at the time of the application to the Tribunal (10 November 2000) and remained relevant throughout the period of the review and in particular at the time of the Tribunal's letter of invitation to the hearing. Section 425A(2) became operational on 10 August 2001 and was relevant as at the time of the Tribunal's letter of invitation of
   31 January 2002.

2. Division 7A of part 7 of the Act deals with the giving and receiving of review documents. In particular, relevant to the issue before me:

   Sections 441A(4), 441C(4) and 441G all became operational on
   10 August 2001 and therefore are relevant as at the time of the Tribunal's letter of invitation of 31 January 2002. This legislation (ss.441A(4), 441C(4) and 441G) is as follows::

   “441A(4):

   Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:

   (a) within 3 working days (in the place of dispatch) of the date of the document; and

   (b) by prepaid post or by other prepaid means; and

   (c) to:

   (i) the last address for service provided to the Tribunal by the recipient in connection with the review; or

   (ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.

   441C(4):

   If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

   (a) if the document was dispatched from a place in Australia to an address in Australia–7 working days (in the place of that address) after the date of the document; or

   (b) in any other case–21 days after the date of the document.

   441G:

   (1) If:

   (a) a person (the applicant) applies for review of an RRT-reviewable decision; and

   (b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;

   the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

   Note: 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.

   (2) 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.

   (3) The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient.

   (4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.

   (5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.”

3. Section 425A(1) provides that if an applicant is invited to appear before the Tribunal, that the Tribunal must give the applicant notice of the date, time and place at which the applicant is scheduled to appear. On its face the effect of s.441G(1) may be said to be that where an applicant has provided the name of an authorised recipient (authorised by the applicant to do things on behalf of the applicant, and that includes receiving documents in connection with the review), the Tribunal “must” give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. In the case before me s.441G was not in effect at the time of the application for review. However, by the time of the Tribunal's letter of invitation this section had become operational, and this meant from the perspective of the applicant’s argument now, that the invitation to the hearing letter must [but see “Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221 (“Makhu”) below] have been given to the authorised recipient. The applicant argues that by sending the letter to the migration agent’s Mt. Waverley address, and not the South Clayton address as provided in the actual form of the application for review, the Tribunal did not fulfil its statutory obligation to give the applicant’s authorised recipient the letter of invitation to the hearing.

   The Migration Agent’s Address

4. The respondent's submission, put particularly by Mr. Chami when he appeared before me at the second hearing, was that the applicant did provide an address for his migration agent as being in South Clayton, VIC in his application for review. This application was signed, and dated, on 2 November 2000 (CB 39). However, as Mr. Chami noted, the facsimile transmission cover sheet, with the migration agent’s Mt. Waverley VIC address on it, was completed on 8 November 2000 (CB 35), and therefore could be said to have constituted the more recent address for the migration agent.

5. There is nothing before me to show that the letter of invitation sent to the applicant's migration adviser (Kamlesh Singh) was returned to the Tribunal as undeliverable. However, I note that both the application for review, and the facsimile cover sheet which accompanied it, were submitted on the same day to the Tribunal. In these circumstances, there could be some doubt as to which of the two addresses was the latest, or relevant, address for the migration agent (or indeed whether it could be both). I had some hesitation initially in accepting that the address on the facsimile cover sheet constituted the most recent (as opposed to only one of two most recent) address of the migration agent. However, I am persuaded by the respondent’s submission in this regard on the basis that the applicant has brought forward no evidence now as to which of the two addresses was the more “appropriate” address. It was open to the applicant, for example, to bring evidence from the migration agent Kamlesh Singh, or to explain any difficulty in doing so. Significantly, there is no evidence before me that the agent did not receive the letter which on the evidence before me was sent by registered post to the Mt. Waverley VIC address. On what is before me, it was open to the Tribunal to treat the Mt. Waverly VIC address as the last notified address for the reasons submitted by the respondent.

6. I accept that the letter of invitation was sent to the address provided by the applicant’s migration adviser. Further, as I have already noted, at the hearings before me, Ms. Frugtniet (the applicant’s “friend”), made much of the respondent's solicitors omission of the “return to sender” advice (as it related to the letter of invitation sent to the applicant’s residential address) from the material provided in the Court Book, and the relevance that this may have on the issue of whether the migration agent did, or did not, actually receive the letter. Beyond seeking to establish that the letter sent to the applicant at his residential address was personally not received by the applicant, and was returned to the Tribunal prior to the making of its decision, issues which Mr. Chami for the respondent conceded, Ms. Frugtniet sought to submit, as I have already noted (and in this regard requested Ms. Burnett be brought for cross-examination) that the Court Book was deficient in a number of other aspects. These aspects were not specified except to say that there was “some doubt” as to what else of relevance had been omitted from the Court Book. The implication was that in the same way that the respondent’s solicitors had “omitted” the “return to sender” advice, they could have “omitted” any “return to sender” advice in relation to the letter of invitation sent to the migration agent.

7. On this issue Mr. Chami submitted that the preparation and filing of the Court Book was not in the nature of discovery. In this regard, he provided some history as to the development of the practice of preparing Court Books in matters of this type before the Federal Court and this Court. Whatever the history, and the Minister’s practice of providing Court Books,  it is clear that at the first Court date in this matter on 25 May 2005, a Registrar of this Court made an order, by consent, that the Minister file and serve a bundle of relevant documents. Clearly, a document that goes to the issue as to whether the applicant personally received correspondence from the Tribunal, particularly as it has been subsequently conceded that the correspondence in question was the letter of invitation sent to the applicant at his residential address, is relevant to this matter. I note that this issue would have been seen as relevant at the time of preparation of the Court Book, and should have been in the bundle of relevant documents that was prepared for inclusion in the Court Book.

8. I also note again that subsequently the copy of the relevant document (the “return to sender” advice) was included as the relevant annexure to the applicant's affidavit of 10 October 2005. But it also appears in the exhibit SAB-1 to the affidavit of Ms. Burnett sworn on 10 October 2005, at page 29 of that bundle of documents. If indeed this document did relate to the letter of invitation to the hearing before the Tribunal (as the respondent subsequently conceded), then in the sequence of documents presented in SAB-1 it is somewhat mysteriously, and without explanation, placed “out of sequence”, as it is inserted between a letter dated 10 December 2004 from the first respondent's Department to the applicant's second migration agent (Mr. Bock), relating to the “second” application for a protection visa, and the application to the Federal Magistrates Court, dated 14 January 2005, relating to the complaint about the decision of the Migration Review Tribunal, which affirmed the decision not to grant a Bridging Visa E to the applicant.

1. Notwithstanding all of this however, and relevant to the issue (implicit in Ms. Frugtniet’s concern that if one document was “omitted” – what else?) of the migration agent’s receipt of the letter of invitation to the hearing, it is understandable that in the preparation of large numbers of documents, particularly given that they are being collated from a number of files across a number of locations, that documents can be misplaced, and it is understandable that they can be “omitted”. It is regrettable that what in many ways is a key document in this case has been the subject of such initial omission and misapplication. But in the absence of any other evidence, or indeed any other real assertion whatsoever, I am not prepared to impugn the integrity of an officer of this Court by saying that this was done deliberately. Nor further did I see it appropriate to allow Ms. Frugtniet to engage in a “fishing expedition” in the absence of anything of a specific nature. Ultimately, it was always open to the applicant to clearly assert that the migration agent (Kamlesh Singh) did not receive that letter of invitation to the hearing, and it was always open to bring evidence contrary to the position asserted by the respondent now, that is, that the letter to the agent was not returned as undeliverable and that it is therefore in all the circumstances, open to the Court to find that the letter was received by the migration agent.

2. I accept the respondent's submission that on what is before me, there is nothing to show that the letter addressed to the migration agent (Kamlesh Singh) was returned “to sender”. The applicant was cross-examined about whether he had sought to obtain any evidence from his migration agent in relation to the receipt of this letter and he stated that he had not. In the absence therefore of any evidence from the migration agent, and indeed in the absence of any other evidence, and in circumstances as outlined above, it is in my view clearly open to draw the inference that the letter inviting the applicant to the hearing was received by the migration agent. I accept Mr. Chami’s submission that the migration agent did receive the Tribunal’s letter of invitation to the hearing. [I will return to the issue of whether the Tribunal fully complied with all of its statutory obligations below].

   Letter to the Applicant’s residential address

3. The respondent also submitted that the Tribunal acquired the power to proceed to a decision without taking further action under s.426A(1) due to its sending of the letter of invitation to the hearing to the applicant’s last known residential address [Darlinghurst, NSW], and that the applicant would be deemed to have received that letter, given the operation of ss.441A(4) and 441C(4) of the Act.

4. At this point I should also note that I found the respondent’s written submissions of 5 October 2005 unhelpful to the extent that:

   1)There is a reference to s.494C of the Act as the heading to paragraphs 6 to 10 inclusive of the written submissions. These paragraphs deal with the Tribunal’s communication with the applicant and his adviser. Section 494C of the Act of course deals with the situation of when a person is taken to have received a document from the Minister, not the Tribunal.

   2)There is a reference at paragraphs 7 and 8 to s.441B(4) of the Act. This section deals with the methods by which the Tribunal gives documents to the “Secretary” of the first respondent Minister’s Department, not to an applicant, or his “authorised recipient”.

5. In any event, the respondent’s position is that the letter of 31 January 2002 (invitation to hearing) was dispatched within three days of the date of the letter (SAB-1 of the affidavit of Ms. Burnett of 5 October 2005). The respondent’s argument is that the letter complies with the requirements of ss.425A [for now I will deal only with s.425A(2)(a)], 441A and 441C(4) in that it was sent in accordance with one of the methods prescribed by the legislation (prepaid post), within 3 working days of the date of the letter to the applicant’s last residential address. The letter is “deemed” to have been received by the applicant seven working days from its date. The respondent’s argument is that “deemed receipt” of the letter at the residential address is sufficient for the Tribunal to discharge its relevant statutory obligation in regard to inviting the applicant to a hearing. The respondent relied on this despite the evidence that the applicant did not in fact receive the invitation: [See Bin Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172, in particular at [13] and [14] of that Full Court Judgment which is binding on me:

   “[13] On 1 October 2004, an officer of the Tribunal wrote to the solicitor, indicating that the application for review appeared to be out of time and inviting the appellant to provide any documents and submissions concerning that issue. On 9 December 2004 the Tribunal decided that the application was out of time. The appellant was advised of this decision under cover of a letter dated 10 December 2004. The appellant sought judicial review of the Tribunal’s decision, alleging jurisdictional error. The primary allegation raised in the application seems to have been that the relevant time limit for his application to the Tribunal was 28 days rather than 21. There was also a suggestion that any time limit should have been calculated from 1 September 2004. A perusal of the Magistrate’s reasons suggests that the appeal was conducted on those grounds. His Honour disposed of it for reasons which reflected the above analysis of the relevant provisions. The notice of appeal against the Magistrate’s decision raises similar grounds but also makes the erroneous assertion that he fell into jurisdictional error. In written submissions on appeal, counsel for the appellant submitted only that given the appellant’s claim that he had not received the notification until 1 September, the deeming provision contained in s 494C did not operate. That argument must fail. Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be ‘taken to have received the document ...’. Nothing in the section suggests that this is merely a rebuttable presumption. In Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77 the Full Court considered a similar, but not identical provision, then found in s 53 of the MigrationAct, but now repealed. It provided that in certain circumstances, an applicant was to be taken to have received a notification ‘even if it was not received’. At [17], O’Connor and Mansfield JJ observed:

   ‘... the statutory provisions operated to deem notification of the decision of the delegate of the Minister, notwithstanding that the applicant may not have received actual notification of the relevant decision until some later time than that deemed by the Act and the Regulations or at all.’

   [14] The wording of s 494C is not quite so clear. Spender J, in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at [69], observed;

   ‘The person is "taken to have received the document", in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only "until the contrary is proved".

   We agree. The sequence of statutory and regulatory provisions to which we have referred proscribes with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application.”

   I note that while that case dealt with whether the Migration Review Tribunal had jurisdiction to review a refusal, by the Minister’s delegate, of an application for a student visa, and turned on when the applicant was notified of the delegate’s decision, the relevant provisions – s.494B (in that case) and in particular s.494C(4) are in similar terms to the provisions relevant before me.

   Letter to the Authorised Recipient and the effect of s.441G

6. Further to the above and in the alternative, in relation to the effect of s.441G (that the Tribunal “must” give the authorised recipient, where such a recipient has been nominated the relevant correspondence) the respondent relies on Makhu a decision of the Federal Court, and SZEMB v Minister for Immigration [2005] FMCA 448 (“SZEMB”), a decision of the Federal Magistrates Court. The relevant issue can best be discerned with reference to paragraphs [38], [39] and [40] of SZEMB and with its references to both Makhu and VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 (“VEAN”).

7. At those paragraphs Smith FM stated:

   “[38] The respondent submitted that Makhu v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCA 221 provides authority to the contrary of the above interpretation. [That is, the interpretation of s.441G(1) that the Tribunal must give the authorised recipient instead of the applicant the relevant communication]. The case concerned procedures followed by the Migration Review Tribunal under provisions which mirror those of the present Tribunal. A letter was sent addressed to an applicant at his residential address and also to him at his mailing address, which was also his migration agent’s address. However, a copy of the letter was not sent addressed to the agent by name at the agent’s address, notwithstanding that the applicant had nominated him under the equivalent of s.441G. Mansfield J held that the letter had been sent to the applicant in accordance with a method prescribed by the equivalent of s.441A(4)(c), and that the applicant was taken to have received it even if he did not. He held that, because the applicant did not respond to the letter, the Tribunal acquired a power to dispense with inviting the applicant to a hearing. As to the effect of the failure to address a letter to the agent by name, his Honour said:

   18. I do not accept that by nomination of his migration agent as an authorised recipient, under s.379G of the Act, the notice under s.359A must only be given to the applicant by being addressed to and sent to the migration agent.

   [His Honour then set out s.379G(2), which is in the same terms as s.441G(2) set out above]

   19. As noted, the letter of 6 February 2003 was addressed to the applicant care of the migration agent at the migration agent’s address and to the applicant at his residential address. Section 379G(1) applies where the Tribunal has given to the authorised recipient, instead of the applicant, the document. Section 379G(2) provides, firstly, that giving the document to the authorised recipient means that the Tribunal is taken to have given the document to the applicant. However, it also expressly preserves the right of the Tribunal to give to the applicant a copy of the document. That it did.

   [39] Mansfield J distinguished the Full Court judgment in VEAN of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 133 FCR 570, in which the Court held that a document could not be deemed to have been duly notified. It had been sent to an applicant who had nominated his sister as his authorised recipient under a provision in the same terms as s.441G. The letter was addressed to the applicant himself "c/o" the sister at her address, but not to the sister. The Full Court held that notice had not been validly given, since the addressee of the letter was not the authorised recipient (supra at [42]). They considered that this was "one of the two critical elements of the means of notification prescribed by" the equivalents of ss.441A(1), 441A(4)(c) and 441G(2), and that this was not a situation where compliance was not mandatory under the principle discussed in Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]).

   [40] I respectfully agree with Mansfield J that the present situation is not addressed by VEAN (supra), since in that case the letter had only been sent to the applicant at his sister’s address and not to his residential or business address last known to the Department. I have some doubt as to his Honour’s construction of the provisions as having the effect that, if deemed service was effected on the applicant at one of his personal addresses, a power to proceed summarily which is dependent upon valid deemed service will arise, even if a Tribunal has ignored its statutory duty under s.441G to notify the authorised recipient. However, I am bound by his Honour’s judgment in this respect, and I am unable to distinguish the provisions which he applied from those arising in the present case. I must therefore hold that the Tribunal in the present case acquired the power to act under s.426A(1) due to its dispatch of the invitation to the applicant’s last known Stanmore address within the times required. Due to the deemed service provision in s.441C(4), the power was not lost by reason of the fact, which I find, that the letter did not come to the attention of the applicant (see VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14-15]).”

8. The relevant facts of the case before me are greatly similar to what was before His Honour in SZEMB, and identical to what was before both their Honours in SZEMB and Makhu in relation to the letter sent to the applicant at his last notified residential address. VEAN, which their Honours in Makhu and SZEMB distinguished, can be similarly distinguished in the case before me on the basis that in that case the only letter sent, and which was supposed to be addressed to the authorised recipient, was not in fact so addressed. The relevant letter in the case before me was addressed to the applicant at his residential address (and the letter sent to the agent was addressed as being sent to the agent (see CB 43)). Relevantly, the letter sent to the applicant was sent to the applicant's last notified residential address.

9. I also note that the applicant gave evidence, and made submissions, that he had notified his migration agent in writing of the change of his residential address. There is also no corroborating evidence before me to show that this in fact occurred and in particular there is no evidence to show that Kamlesh Singh received any such communications from the applicant and failed to act upon them. Nor is there any evidence that any advice was provided to the Tribunal, prior to the sending of the letters of invitation to the hearing, of any change in the applicant’s residential address.

10. Smith FM found that he was bound by the judgement of Mansfield J. in respect to the “deemed service” provision in s.441C(4) in circumstances where ss.441G(1) and 441G(2) applied. I note that Makhu was not a matter decided on appeal, but was decided in the exercise of the Federal Court’s original jurisdiction. While with respect, where Smith FM felt bound by that decision, I choose to follow that decision, and am in this regard, bound by the Full Federal Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 where the Full Court of the Federal Court, sitting as Weinberg, Jacobson and Lander JJ. stated at [35] to [39]:

    “[35] In NAAT v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 196 ALR 376 ("NAAT") at [27] Raphael FM held that the judgments of single judges of this Court, are not binding on Federal Magistrates when those judgments are not delivered as an exercise of the Court’s appellate jurisdiction from Federal Magistrates. However, his Honour observed that ordinary principles of comity required Federal Magistrates to follow judgments of single judges of this Court unless they were considered to be wrong.

    [36] The authorities to which Raphael FM referred in NAAT certainly lend some support to his Honour’s analysis. They suggest that the principle of stare decisis requires a court lower in the particular judicial hierarchy to follow a decision of a court higher in that hierarchy only where that higher court is exercising appellate jurisdiction; see Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 591 (Barwick CJ); Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504 (Gummow J); Chief Executive Officer of Customs v Tony Longo Pty Ltd (2001) 52 NSWLR 458 at [51] – [52] (Heydon JA). See R Cross & J Harris, Precedent in English Law, Oxford University Press, Oxford, 1991, p 123.

    [37] This limitation on the principle of stare decisis can lead to odd results. For example, had Madgwick J been sitting on appeal from a Federal Magistrate in MMM, his judgment would have been binding upon all Federal Magistrates. However, because he was exercising original jurisdiction, a matter of sheer chance, at least in relation to migration cases, his judgment was not strictly binding.

    [38] Even if the Federal Magistrate was correct in holding that the judgment of Madgwick J was not binding upon him, he most certainly was not correct in refusing to follow it. The judicial comity which ought to apply between the Federal Magistrates Court and judgments of single judges of this Court (when not exercising appellate jurisdiction) should at the very least be the same as that which exists between single judges of this Court. The correct principle is that a judgment ought to be followed unless it is plainly wrong. Lander J referred to the relevant authorities in Cooper v Commissioner of Taxation (2004) 210 ALR 635 at [46].

    [39] It seems to us that the application of this principle contributes to the predictability of outcome of proceedings which is a necessary feature of the exercise of jurisdiction by all Chapter III courts. This must be so for the Federal Magistrates Court, particularly where appeals from judgments of that Court may be dealt with by a single judge in the appellate jurisdiction of this Court; see Federal Court of Australia Act 1976 (Cth), s 25(1A).”

11. On that basis therefore, (with respect the decision is not “plainly wrong”) I follow Mansfield J., and, with respect, like Smith FM, am unable to distinguish the provisions which Mansfield J., applied from those arising in the case before me. The Tribunal in the case before me [focussing for the moment on the issue of deemed receipt – see paragraphs below on compliance with prescribed notice periods] could be said to have acquired the power to act under s.426A(1) due to its sending of the invitation to the applicant's last known residential address within the time required, irrespective of the separate finding that the authorised recipient was, contrary to the applicant’s contention, sent the invitation in compliance with the Tribunal’s obligations. Like Smith FM, I find that due to the “deemed service” provisions in s.441C(4) (seven working days after the date of the letter), the Tribunal's power to proceed under s.426A(1) would not have been lost by virtue of the fact that the letter did not actually come to the attention of the applicant, even though in the case before me the respondent has conceded that this letter was returned to the Tribunal, and did not actually come to the attention of the applicant. (In this regard also, as in SZEMB, see VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14]-[15]).

12. I should also note at this point that in submissions for the applicant drafted by “Edward Nicholas Seyfarth” filed on 28 November 2005, at paragraphs 29 and following, the applicant makes reference to s.494D of the Act, and of the requirement for compliance with that section (as it related) to the Tribunal’s letters of 31 January 2002 (invitation to hearing – CB 42 to CB 43) and 21 March 2002 (notification of decision – CB 44). The submission made reference to this section as being relevant to the issue of notice to the Minister by an applicant of the appointment of an authorised recipient, and the subsequent sending by the Minister of documents to an authorised recipient where such a person has been so nominated. Clearly however, the Tribunal is not the Minister, and the Tribunal before me was not exercising any power delegated by the Minister or otherwise. The Tribunal's power to review protection visa decisions derives from Part 7 of the Act. The relevant legislation in relation to the giving of correspondence (by the Tribunal to an applicant) is contained in Division 4 of that Part, and Division 7A, which is concerned with the giving and receiving of review documents. Section 494D is contained in Part 9 of the Act and deals with various miscellaneous matters. Clearly s.494D relates to the Minister, and not the Tribunal.

1. As I have set out above, when distilled, the respondent’s answer to the applicant’s complaint that he did not receive the Tribunal’s letter of invitation to the hearing is that a letter of invitation was sent to the applicant’s migration adviser to the latest address provided for the adviser, and in any event even if some deficiency in this regard was shown (that is the address was not the “appropriate” address), the Tribunal also sent the letter of invitation to the applicant at his last known residential address and that on the application of relevant authorities he would be deemed to have received notification of the hearing, notwithstanding that the letter in question “must” be sent to the applicant’s authorised recipient and the letter sent to the residential address was not received by the applicant.

2. In relation to the letter sent to the authorised recipient/migration agent, as I have set out above, the letter complied with the provisions of ss.424A(2) and 441A(4) and 441C(4). If this was all, then the applicant’s complaint [subject to any broader considerations of procedural fairness at general federal law] would fall away, as the Tribunal could be said to have complied with the statutory requirement to send the relevant correspondence inviting the applicant to the hearing, to the applicant’s migration agent who could be seen by that time to have been authorised for the purpose of receiving such correspondence on the applicant’s behalf. Further, in applying Makhu the applicant was deemed to have received the letter of invitation to the hearing, sent to his last notified residential address, even though he did not actually receive it.

   Compliance with the Statutory Notice Periods

3. By way of introduction to the following I note again that the conduct of this case before me involved two hearings and subsequent opportunities for written submissions and the additional provision of evidence. From the respondent in this case I have three sets of written submissions, one of which was filed after the second hearing. The presentation of the case has involved a far greater process of “evolution” than is seen in many similar cases, to some extent because of what can be described as the respondent’s initial lack of comprehensive presentation. In all therefore, I am of the view that the parties, particularly given the following, the respondent, have had ample opportunity to present their case.

4. On what is before me, and further to what is set out above, in one respect the Tribunal has not complied with the relevant statutory requirements relating to the period of notice:

   1)Section 425A(3) provides that the period of notice in relation to an invitation to appear at a hearing must be at least the prescribed period, or if no prescribed period, a reasonable period.

   2)Section 441A(4) provides that a method by which the Tribunal gives a document to a person is to date the document and dispatch the document by prepaid post within 3 working days to the last address for service, or last residential or business address provided by the recipient.

   3)Section 441C(4)(a) provides relevantly that a person is taken to have received a document from the Tribunal, seven working days after the date of the document.

   4)Regulation 4.35D(b) of the Migration Regulations 1994 (“the Regulations”) provides that for the purposes of s.425A(3) of the Act the prescribed period for the giving of notice of an invitation to a hearing starts when the applicant receives notice of the invitation, and ends at the end of 14 days after the day on which notice is received.

5. In applying this to the relevant facts before me:

   1)The date of the letter of invitation to the hearing is 31 January 2002 (see CB 42, and SAB-2 to the affidavit of Ms. Burnett of
   5 October 2005).

   2)The letter was sent by prepaid post to the migration agent/authorised recipient, and to the applicant at his residential address on 1 February 2002 (see SAB-1 to the affidavit of Ms. Burnett of 5 October 2005).

   3)The letter was sent within 3 working days (see SAB-1 to the affidavit of Ms. Burnett of 5 October 2005).

   4)As the date of the letter was 31 January 2002, and this day was a Thursday, 7 working days after the date of the document (for the purposes of s.441C(4)), is Monday 11 February 2002. [The calculation of the relevant period begins with Friday 1 February 2002, being the day after the date of the letter, and as only working days are relevant, February 4, 5, 9 and 10 are not taken into account].

   To this point the Tribunal appears to have complied with the relevant statutory requirements. The migration agent would be said to have received the letter of invitation on Monday 11 February 2002. However:

   5)The effect of s.425A(3) and Regulation 4.35D(b) is that the period of notice that must be given in relation to a letter of invitation to a hearing is at the end of 14 days after the day on which the notice is received.

   6)In the case before me that would mean this period ends on Monday 25 February 2002.

   7)As the hearing was set for 22 February 2002 the Tribunal did not comply with the statutory period of notice in relation to the letter sent to the migration agent.

6. The same reasoning also applies to the letter sent by the Tribunal to the applicant at the last known residential address. That letter also (given that it was identical other than for the addressee and the same legislative provisions apply), did not comply with the prescribed period of notice for the same reasons as set out above.

7. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) the High Court considered the issue of procedural fairness as it applied to Division 4 Part 7of the Act (albeit in the context of s.424A), but nonetheless ss.425 and 425A are contained in this division. McHugh J., said at [55]:

   “The main purpose of the Division is to accord procedural fairness to applicants in determining whether a decision of the Minister or the Minister's delegate should be affirmed.”

   In considering whether a failure to comply with a statutory obligation (in the case of SAAP s.424A) McHugh J. at [77] also said:

   “There can be no "partial compliance" with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act.”

   Kirby J., (with direct reference to a breach of s.424A) said at [173]:

   “Nevertheless, is breach of s 424A sufficient to establish jurisdictional error necessary for relief in this case? Because of the mandatory language of s 424A ("must") and the provisions of Pt 7, Div 4, I agree with Hayne J[129] that the breach is sufficient to constitute jurisdictional error, as that opaque expression has been interpreted. An imperative obligation for the conduct of a review by the Tribunal has not been complied with. The will of the Parliament must be obeyed. The resulting decision of the Tribunal is not, therefore, one protected by the Act from judicial review in the Federal Court.”

   Hayne J., again dealing with s.424A but relevantly to the issue before me said at [208]:

   “Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”

8. On the calculations set out above, the Tribunal's action in respect of both the letter of invitation sent to the applicant’s migration agent, and the letter of invitation sent to the applicant at his residential address (in respect of which the respondent relies on deemed service of that invitation on the applicant) the Tribunal has not complied with the requirement in relation to the period of notice pursuant to s.425A(3) of the Act.

   Procedural Fairness

9. Having determined that there is jurisdictional error in the Tribunal’s decision as a result of the non-compliance with the prescribed periods of notice in relation to the invitation to the hearing, it is probably unnecessary for me to go on to further consider the applicant’s complaint in context of a breach of procedural fairness at general law. I refer to SAAP, and in particular:

   Kirby J at [171]:

   “Having regard to the conclusion on the statutory issue, it is unnecessary, in the circumstances of this case, to reach any final conclusion on the availability of a complaint of procedural fairness under the general law and, if available, to decide whether that complaint was made out. However, in passing this issue by, I would not wish it to be thought that I regarded the appellants' complaints under the general law as lacking substance.”

   Hayne at [209]:

   “In light of that conclusion [of jurisdictional error], it is not necessary to consider the separate question whether the procedures which were followed by the Tribunal in this particular case were procedurally fair.”

   McHugh at [78]:

   “If it is accepted that a breach of s 424A gives rise to jurisdictional error, it is not necessary to consider whether that breach also resulted in a failure to accord procedural fairness under the general law.”

10. However, given that I have an unrepresented (legally) applicant before me I provide the following, for his benefit, in relation to his submissions on the issue of procedural fairness generally. Further, the following paragraphs will assist to inform the relevant considerations in those paragraphs below dealing with the exercise of the Court’s discretion.

11. The applicant submitted, particularly in written submissions filed on
    15 December 2005, that s.422B does not apply in his case to make the matters contained in Division 4 of Part 7 of the Act (including ss.425 and 425A) the exhaustive statement of the requirements of the natural justice hearing rule. Section 422B became operational in July 2002. The Tribunal's decision was handed down well before on that on
    21 March 2002, and therefore clearly the issue of the Tribunal's letter of invitation, pursuant to s.425 predates the operation of s.422B. The applicant submitted that the Tribunal's decision was attended by a failure of procedural fairness. By way of written submission the applicant referred me to two decisions of Smith FM: SZDOG v Minister for Immigration [2004] FMCA 972 (“SZDOG”) and SZEMB v Minister for Immigration [2005] FMCA 448 (“SZEMB”) where his Honour found that the discretion exercised by the Tribunal pursuant to s.426A(1) [decision to proceed without giving the applicant another opportunity to come to a hearing] was vitiated on the basis that the discretion was shown to have been invalid due to a failure to address considerations relevant to the exercise of the discretion which the Tribunal was bound to consider. I accept the applicant's submission to the extent that, notwithstanding that the Tribunal may have acquired the power to act under s.426A(1) [the applicant was not focussed on s.425A(3)] due to the sending of the invitation to the applicant's last known residential address within the relevant times, that the Court should in the exercise of its discretion, in circumstances in this case, consider whether the Tribunal's action was attended by a failure of procedural fairness at general law. Of course this issue would have had far greater significance had I found no jurisdictional error in what the Tribunal did in relation to the letter of invitation and the prescribed period of notice.

12. In relation to the two cases specifically referred to by the applicant, I should note that factually both can be distinguished from the case before me:

    1)In SZDOG the Court found that there was one further point that the Tribunal was bound to consider, while deciding whether to proceed under s.426A, was up-to-date information available on the Tribunal's file showing the true situation in relation to service of the critical notice. This was in a case where the Tribunal drew an adverse inference from the applicant's failure to respond. In SZDOG the Court found that the Tribunal inferred that the applicant had actually received a notice and had consciously decided not to respond and that the Tribunal's decision to proceed summarily “miscarried” because it had overlooked the fact that the letter sent to the applicant's last known residential address had been returned unclaimed to the Tribunal before it handed down its decision. The Court however found that in that case the Tribunal's reasons showed that it had drawn a mistaken positive conclusion that the applicant had shown a deliberate lack of interest in his application. There is no such mistaken positive conclusion drawn by the Tribunal in the case before me.

    2)In SZEMB His Honour identified two aspects that raised concerns. The first was the absence of reference in the Tribunal’s decision record to the fact that the letter sent to the applicant's last known residential address had been returned unclaimed to the Tribunal before it handed down its decision. In the particular circumstances of that case however, His Honour was not prepared to draw an inference that the Tribunal overlooked the possible significance of the return of the invitation that had been addressed to the applicant's residential address. This is analogous to the case before me. However, the issue on which the Court in that case ultimately found for the applicant, was that the Tribunal had mistakenly considered that the applicant's agent had been duly notified pursuant to s.441G. The Court found in that case that the Tribunal exercised is discretion pursuant to s.426A without taking into account that it had failed to give the notice of the hearing required to be given to an authorised agent and proceeded to make a final decision upon the mistaken belief that the agent had been notified with sufficient time for him to make significant efforts to contact his client (over a period of at least two weeks). His Honour considered that in the circumstances of that case, this gave rise to jurisdictional error.

13. Although the evidence before me is not entirely clear, what is conceded by the respondent is that the letter of invitation to the hearing was returned to the Tribunal before the making of its decision on
    27 February 2002, although the exact date of return is unclear. [The “return to sender” stamp as seen in the annexure to the applicant's affidavit of 10 October 2005 possibly has a date “18/2” which may be the date on which the postal service initiated the return to the Tribunal.] Further, the letter sent to the applicant at his residential address was sent to the last residential address advised to the Tribunal by the applicant and/or his adviser. While the applicant asserts before me now that he provided advice in writing to his adviser of his new residential address, in the expectation that this would be passed on to the Tribunal, the applicant who has had the benefit of assistance from his “friend” and from Mr. Seyfarth has brought forward no evidence to support this assertion. It was clearly open to the applicant to have submitted to the Court copies of any correspondence advising his representative of the change of address, or indeed, evidence from the adviser (Kamlesh Singh) of the receipt of any such correspondence, and the failure, or otherwise, to act upon it. Nor can any inference be drawn that the Tribunal member actually knew prior to the exercising of the discretion pursuant to s.426A that the letter to the applicant’s residential address had been returned as undeliverable.

14. In the case before me the applicant’s expectation was, as it initially arose as set out in the completed application form for review to the Tribunal (CB 37) (which was completed at a time prior to the introduction of s.441G of the Act), that all documents would be sent to him at his residential address (unless otherwise advised). Clearly at that time the expectation in relation to his migration agent would have been that the Tribunal would send copies of all correspondence to his adviser. The Tribunal's decision record reveals that in its consideration of this issue, the Tribunal approached the issue not inconsistent with this original understanding. The letter was sent to the applicant at both his home address and address for service. [Given that no specific address for service was given in the original application form to the Tribunal and that no evidence whatsoever was put before me that other advice was given to the Tribunal, it is clear in the circumstances of the completed form that the address for service would have been his home address.] This can clearly be inferred by the way the Tribunal then goes on to say in its decision record that a copy of the letter was also sent to his adviser.

15. The applicant further asserts in written submissions that no attempt was made by the Tribunal to inform the applicant’s agent of the hearing. Clearly on the evidence before me, an attempt to notify the applicant’s agent in writing was made by sending a copy of the letter of invitation to the hearing to the adviser’s Mt. Waverley address. Nor has the applicant brought forward any evidence to show that this letter addressed to the Mt. Waverley VIC address, was not received by the migration agent. Notwithstanding that the applicant had personally, through the application, provided a different address for his agent. It is clear that the agent had provided and continued to provide at the time of the making of the application, an address at Mt. Waverley VIC.

16. The applicant also complains that there was a long delay between the making of the application to the Tribunal (10 November 2000) and the date of the Tribunal's letter of invitation to hearing (31 January 2002), well over two years later. I agree with the applicant that this is a long delay. I also agree that the Minister has provided no evidence now to explain why there was a long delay before the Tribunal scheduled a hearing date for this matter. However the applicant has not established how this contributed to the subsequent events of which he complins. At the time of the receipt of the application for review the Tribunal sent a letter of advice to the applicant (10 November 2000) as to the process by which of the review would be conducted (CB 42 to CB 41). That letter was clearly sent to the applicant's residential address with a copy to his migration agent at the Mt. Waverley-VIC address. That detail was recorded on the letter. The applicant received that letter. There is nothing before me to show that the applicant took any steps either personally, or through his agent, to advise the Tribunal that the
    Mt. Waverley VIC address was not the relevant address for the agent. Nor, was there any evidence to show that this letter was returned to the Tribunal as undeliverable (that is the letter of 10 November 2000 to the migration agent at the Mt. Waverley VIC address). The importance of providing the Tribunal with accurate information relating to relevant addresses is clearly emphasised in the letter from the Tribunal. The letter very clearly sets out at CB 41:

    “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 the opportunity to appear before the Tribunal and give evidence on your case.”

1. Having determined that there is jurisdictional error in the Tribunal’s decision, due to the failure to correctly observe the notice period prescribed, the issue remains however, as to whether such error in all the circumstances should lead to the applicant receiving the relief that he seeks. It is well established that such relief as the applicant seeks is discretionary. It is clear that delay is a discretionary criterion for the denial of the relief sought by the applicant, that of certiorari and prohibition. Also, unreasonable delay may be sufficient to justify discretionary refusal of mandamus: see Aronson and others: ‘Judicial Review of Administrative Action’ Third edition Thomson 2000 Law Book Co. 2004 at page 736 to 737. The application may be dismissed on the grounds of unwarrantable delay and this could be done without deciding the merits of the applicant's alleged grounds of review. R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors (1980) 31 ALR 565 at 570 per Barwick CJ Gibbs, Stephen, Mason and Aickin JJ. It is well accepted that relief under s.75(v) of the Australian Constitution is like prerogative relief generally, and is discretionary: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 at [33] and Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 the High Court confirmed that the constitutional writ of prohibition is discretionary and held that prohibition and mandamus should issue in that case. At [53] Gaudron and Gummow JJ. said:

   “The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves "two separate questions" [134] . The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances.”

2. Further I note that in SAAP the majority found (essentially) against the Tribunal in circumstances where the Tribunal failed to comply with a mandatory provision contained in Division 4 of Part 7 of the Act. While the majority found the Tribunal’s failure in that case had been a breach of the obligation to accord procedural fairness and that therefore there was jurisdictional error, all allowed for the possibility that the exercise of the discretion to withhold relief is a possibility, (but found that there was no such reason evident in the case before them to do so):

   McHugh J., at [80] said:

   “The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.” (Citations deleted)

   Hayne J. at [211] stated:

   “For the reasons given earlier, the decision reached by the Tribunal is invalid. There is no basis, in this case, on which the undoubted discretion to refuse the relief sought could be exercised against its grant. There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellants said to stand in their way…”

   Kirby J. in dealing with the discretionary issue said at [174]:

   “I also agree with Hayne J that such submissions as were advanced for the refusal of relief on discretionary grounds are unconvincing and should be rejected.”

   In SAAP those submissions primarily concerned issues of procedural fairness arising out of the particular circumstances involved in that case. There was no issue apparent in relation to unwarrantable delay, or acquiescence, or unclean hands on the part of the applicant. That distinction is clearly evident in the case before me where the respondent presses unwarrantable delay and the applicant's own actions as a basis for refusing the relief sought.

   Delay, Acquiescence, Unclean hands

3. The respondent’s position is (as presented especially by Mr. Chami) that the applicant delayed over three years in bringing his complaint about the Tribunal's decision before this Court, that there was acquiescence in the Tribunal’s decision (“second” application for a protection visa) and that the applicant’s actions, and explanations for his actions, prior to coming to this Court were unexplained.

4. The applicant's response is:

   1)The applicant confirmed that the Tribunal handed down its decision on 21 March 2002, but that he did not receive a copy of that decision at that time as it was sent to two addresses (being his residential address – which he had left prior to that time – and that of his migration agent – Mt. Waverley, VIC) both of which he said were “no longer current”.

   2)In his affidavit of 4 October 2005 the applicant states that he did not receive any of the communications found in the Court Book (including presumably the notification of the Tribunal decision: (CB 44) until he obtained a copy of the Court Book in June 2005 (paragraph 8 was admitted into evidence before me)).

   3)In the same affidavit the applicant states that he first obtained the decision and reasons of the Tribunal on 6 May 2005 and that this had been sent to him by facsimile transmission from the Tribunal on 6 May 2005 (paragraph 9). At that time the applicant had been detained pursuant to the Migration Act, and was held in the Villawood Immigration Detention Centre. He further states that he then filed an application in this Court complaining about that Tribunal decision, immediately on the same date (paragraph 10).

   4)The applicant's position as set out in his written submissions of
   5 October 2005 (before the second hearing before me) was that he did not receive the letter from the Tribunal notifying him of its decision (CB 44) until “much later”, and that he was unaware that the Tribunal had determined his application in his absence and that his application had been refused. Further he says that he was “unaware” on 1 December 2004, when he was placed in “immigration detention”, that this had occurred (paragraph 10). He further states that even at that time he was still not provided with a copy of the decision and reasons of the Tribunal.

   5)The applicant further submitted that as he was at that time (presumably December 2004) unable to contact his migration agent (Kamlesh Singh) he asked his wife to obtain the services of another migration agent (Paragraph 11).

   6)The applicant also submitted that his wife’s instructions to this other agent, (Mr. Bock), were to pursue the application (that led to the Tribunal’s decision before me now), but that Mr. Bock “appears” to have made a “fresh application” for a protection visa.

5. At the second hearing before me the applicant was cross-examined by Mr. Chami. Relevantly the applicant’s evidence was:

   1)On 31 August 2000 he applied for a protection visa.

   2)On 20 October 2004 the applicant was arrested at Sydney airport because he was carrying a “false Australian passport”.

   3)That he did not see Mr. Bock on 15 November 2004 for the purpose of filing a “second” protection visa application.

   4)While in (Immigration) detention the applicant applied for a Bridging Visa E on 14 December 2004. In response to a question that this had been refused on 17 December 2004, the applicant replied that he could not remember.

   5)Nor could the applicant remember whether he had made an application for review of this decision on 20 December 2004 to the Migration Review Tribunal, or that the Migration Review Tribunal affirmed the decision to refuse the Bridging Visa E on 31 December 2004.

   6)The applicant confirmed that everything in his affidavits of
   27 September 2005, 4 October 2005, 10 October 2005 was true and correct.

   7)With reference to his evidence in relevant paragraphs (particularly 9, 11, and 12) of his affidavit of 27 September 2005 the applicant could not remember receiving advice from his migration agent (Kamlesh Singh) in August 2000 that he should apply for a protection visa although he affirmed this in his affidavit.

   8)That his expectation was that all correspondence from the Tribunal in relation to his application for review of the refusal of his protection visa application would be sent to his migration agent. His evidence was that this expectation derived from “in my application it was clearly specified that all correspondence is to be handled by the migration agent” (Kamlesh Singh). He reinforced this by stating that he made a “tick mark” to that effect. [I took this to be a reference to the answer to Question 11 at CB 37.6].

   9)That he advised his migration agent of his change of residential address in writing and that the expectation was that the agent would notify the [Minister’s] Department and the Tribunal.

   10)That he did not contact his agent (Kamlesh Singh) during the time of the current proceedings before the Court to obtain a copy of his letter with this advice.

   11)In answer to relevant questioning confirmed that nothing was said in his affidavits of 4 September 2005, 4 October 2005 and
   10 October 2005 about his contacting his migration agent, in writing, to notify of a change of his residential address.

   12)In answer to questioning from Mr. Chami the applicant said he did seek advice from Mr. Bock in November 2004.

   13)That the applicant’s signature on the application form for the “second” application for a protection visa (page 23 of SAB-1 to the affidavit of Ms. Burnett of 10 October 2005, was his signature, but that he did not know what application was being made because he signed “a blank application”.

   14)The applicant then conceded that he met with Mr. Bock while he was in detention, but “only once”.

   15)That the applicant was not aware of what Mr. Bock had done, even though he said he gave him “personal information”.

   16)That even though the “second” application for a protection visa contained references to an earlier application (see page 3 (question 2), page 19 (question 39), and the handwritten reference to “second time”, and the letter from his migration agent (Mr. Bock – at page 81) and that he stated to the Migration Review Tribunal that he had made a “section 48B” application “because his original application was made well before” (see SAB-1 to the affidavit of Ms. Burnett of 10 October 2005). The applicant insisted that he had not filled out the “second” application form and knew nothing of what Mr. Bock did on his behalf, or could not remember.

   17)The applicant, at first, denied that he had appeared before the Migration Review Tribunal on 31 December 2004, but when his memory was refreshed (by page 76 of SAB-1 to the affidavit of Ms. Burnett of 10 October 2005) he agreed that he had. He emphasised that this appearance was not in relation to his refugee application.

   18)The applicant confirmed that he had received a copy of the decision of the Migration Review Tribunal of 31 December 2004. But insisted at that time he still did not know of the Tribunal decision of 27 February 2002.

   19)He repeatedly confirmed this, even though the Migration Review Tribunal decision of 31 December 2004 makes clear reference to the first protection visa application, and the subsequent decision of the Tribunal to affirm the delegate’s decision to refuse the protection visa (see page 93 of SAB-1 to the affidavit of
   Ms. Burnett of 10 October 2005 at paragraph 15). It also makes clear reference to the “section 48B request” (see page 94 of SAB-1 to the affidavit of Ms. Burnett of 10 October 2005 at paragraph 19).

   20)The applicant did not provide any explanation as to:

   a)The Migration Review Tribunal decision record reference as to what occurred at the hearing it conducted with the applicant on 31 December 2004 (see paragraphs 29 to 32 of its decision record as relevant to this issue at pages 95 to 96 to the affidavit of Ms. Burnett of 10 October 2005).

   b)The applicant’s account to the Migration Review Tribunal taken from its unchallenged record of what occurred at the hearing before it was that:

   (i)He arrived in Australia as the holder of a student visa.

   (ii)He met a migration agent in 1999 (Kamlesh Singh), just before his student visa expired who advised him to apply for refugee status, instead of seeking an extension (or renewal) of his student visa.

   (iii)He paid the agent $10,000 and when the agent produced an Australian passport he assumed his application for refugee status (in 1999) was successful.

   (iv)“He had not been aware that an application for a protection visa was then lodged for him in August 2000” (Paragraph 32 of the Migration Review Tribunal’s decision record).

6. The applicant’s evidence before me was unsatisfactory in a number of relevant ways. The applicant at first said he could not remember certain key events (such as the making of the application to the Migration Review Tribunal, yet agreed this occurred when confronted with evidence to the contrary). However, of greater significance is the applicant’s account to the Migration Review Tribunal (and he has produced no evidence, nor even put anything by way of submission, to challenge the Migration Review Tribunal’s account of what he said to it) as to his protection visa application in August 2000. This was, in one part, that he did not know it had been made. Yet he has clearly put in evidence before me now that he did know of it, and was expecting that correspondence in relation to this application would be sent to his migration agent. Further, while he asserted at first that in relation to the “second” application for a protection visa he had no knowledge of this (in the sense that his wife engaged Mr. Bock on this behalf) he then conceded that he had met Mr. Bock (albeit “only once”), and given him “personal information”. The applicant has also provided contradictory accounts as to the time of the engagement of Mr. Bock. In written submissions of 5 October 2005 the applicant said that his wife obtained the services of Mr. Bock (paragraph 11). In context (paragraph 10) this is said to have been sometime after 1 December 2004. Yet clearly given the evidence before me, Mr. Bock must have been engaged sometime prior to mid-November 2004.

7. Further, the applicant’s evidence that he signed a “blank” application form in November 2004, and that he did not know what was happening on his behalf is clearly contradicted by the letter of 15 November 2004 from Mr. Bock to the first respondent’s Department (see SAB-1 to the affidavit of Ms. Burnett of 10 October 2005 at page 1). The letter clearly states the “new claim” as being asked for by the applicant and states clearly that the applicant was “counselled” as to the “slim likelihood” of success, but that the applicant “directed” that Mr. Bock “continue with this application on his behalf”. Apart from some reference at the second hearing before me to Mr. Bock being “under investigation” the applicant has not sought to challenge by way of evidence what is said in Mr. Bock’s letter. The applicant says, in effect, he did not know what was happening. However he has not explained why Mr. Bock clearly asserted to the contrary in his letter of
   15 November 2004.

8. In written submissions subsequent to the second hearing, filed on
   28 November 2005, and drafted on the applicant’s behalf by Mr. Seyfarth, the applicant submits that he does not dispute that the “proceedings applied for” are out of time, but invites the Court not to refuse the applicant the relief he seeks on the basis that “any hearing conducted by the Tribunal was an illegal hearing”. I took the reference to “illegal” to mean that the Tribunal's decision was infected by jurisdictional error because (given what is also contained in the submissions) of its alleged failure to comply with its obligation to invite the applicant to a hearing before it.

9. In relation to unwarrantable delay, I found these submissions generally unhelpful. For example paragraph 52 makes reference to the applicant receiving advice from a scheme funded by the “Department of Immigration” and that the applicant was given poor advice, and that this is a reflection of the advice the applicant has “received in general”. To the extent that the reference in the submissions of 28 November 2005 is a reference to the Court’s Legal Advice Scheme, and the reference is perhaps to advice received by the applicant from a lawyer on the panel of that scheme, I cannot see how any complaint about this advice goes to the issue of explaining the applicant's delay in the filing of this application to the Court. Clearly any such advice would have been received after his application to the Court had been filed.

10. The applicant's further (and final) written submissions of 15 December 2005 assert that the applicant accepts that even if jurisdictional error were to be found in the Tribunal’s decision, there is still discretion in the Court to refuse relief on the ground of unwarrantable delay. The applicant, particularly at the third paragraph of these submissions, appears to concede:

    “The applicant accepts that even if a jurisdictional error were to be found, the Court has discretion to refuse relief on the ground that there had been unwarranted delay in challenging the Tribunal’s decision.  In this case, more than three years’ delay has occurred. [Emphasis added] The applicant filed his application to the Court was filed in 28 March 2005 whilst he was held at the Villawood Immigration Detention Centre.” [The application was actually filed on 6 May 2005].

    But goes on to say:

    “But nonetheless the applicant submits given that the complaint is that he was wrongly denied an opportunity to appear before the Tribunal it is the applicant’s respectful submission that if the Court concurs with the applicant’s submission that this case is afflicted with jurisdictional error that relief should be granted.”

    Significantly, there is nothing to attempt to explain delay. The bulk of the applicant’s submissions appear to emphasise the alleged jurisdictional error on the part of the Tribunal, (albeit for a particular different to the one where I found jurisdictional error) and to strongly maintain that relief should be granted on this basis, irrespective of any unwarrantable delay. It is difficult not to see this (and particularly in the context of the submissions of 15 December 2005 as a whole) other than that the applicant concedes that the unwarrantable delay is over 3 years.

11. The Tribunal decision was handed down on 21 March 2002. On that date the Tribunal sent a letter notifying the applicant of its decision. The letter (CB 44) was sent to the applicant's migration agent (Kamlesh Singh) but was addressed to the same address of the migration agent to which the Tribunal had earlier sent its letter of invitation to the hearing (the Mt Waverley VIC address). The copy sent to the applicant was, for reasons which have already been set out, sent to the applicant’s residential address which was no longer the “current” residential address for the applicant. For the purposes of arguing against unwarrantable delay as a basis for refusing the relief sought, the applicant submits that he did not personally receive this letter of notification of the Tribunal’s decision from the Tribunal. Given that there is evidence (not disputed) that the applicant was not residing (at least from some time prior to the time of the earlier letter of invitation to the hearing) at the residential address to which this letter was sent, I accept that the applicant did not receive this letter. This view is of course strengthened by the fact that the respondent has conceded that the earlier letter of invitation to the hearing sent to the same residential address was returned to the Tribunal as “undeliverable”. There is no evidence before me to show that the letter of notification of the decision was similarly returned to the Tribunal. However, in all the circumstances having conceded that an earlier letter sent to the same residential address was returned as “undeliverable”, and the applicant gave evidence which was not challenged that he had moved from that address prior to the relevant time, the respondent would be hard pressed to argue that a subsequent letter sent to the same address was in fact received. Nor, importantly, has the respondent so argued.

1. But the circumstances are different in relation to the letter notifying the Tribunal’s decision sent to the migration agent (Kamlesh Singh). Firstly, while again there is no evidence before me to show that this letter was returned to the Tribunal, there is also no evidence before me that the earlier letter of notification of the hearing sent to the same
   Mt. Waverly, VIC address was also returned as undeliverable. (This contrasts with the same letter sent to the applicant’s residential address which was returned as undeliverable). Further, while the letter notifying the Tribunal’s decision sent to the applicant’s then migration adviser (Kamlesh Singh) on 21 March 2002 was sent to the
   Mt. Waverley, VIC address, there is no evidence before me to show that this letter was not received by the agent, or that it was returned as undeliverable to the Tribunal. It was always open to the applicant to have sought to bring evidence for example from Kamlesh Singh on this issue, or to have submitted as to any difficulty in doing so.

2. I should also note that the Tribunal’s letter notifying the applicant of its decision (CB 44) states that it was “sent to” the applicant’s migration agent. Section 430B(6) required the Tribunal to notify the applicant of its decision by giving the applicant a copy of its decision within 14 days after the decision was handed down and by one of the methods specified in s.441A. The Tribunal’s record indicates (CB 45) that the decision was handed down on 21 March 2002. The Tribunal sent the letter enclosing a copy of its decision on the same day [by a method set out in s.441A(4)]. By sending the letter to the authorised recipient the Tribunal complied with s.441G(1) which obliges the Tribunal to give the authorised recipient, instead of the applicant, any document it would otherwise have given to the applicant.

3. In giving evidence before me the applicant was not convincing as to his assertion that he had no knowledge of the Tribunal's decision, certainly at least as at mid-November 2004. His evidence (and submissions) was that he was unaware that a decision had been made until after he was placed in immigration detention on 1 December 2004. Significantly, in submissions, the applicant goes on to say that even at that time, he still had not been provided with a copy of the decision. In any event, contrary to the evidence given by the applicant (which I found to be unsatisfactory in a number of aspects as set out above) the material before me shows that the applicant's second migration adviser (Mr. Bock), made an application on his behalf for a “second” protection visa in mid November 2004 (this in itself contradicts the applicant’s submission that Mr. Bock was not engaged until after 1 December 2004). The applicant asserts in one part that the agent had been engaged by his wife, and that he did not know that the agent was making a “second” application on his behalf. On what has been presented to me I cannot accept the applicant's evidence in this regard, nor his submissions, that he did not know what Mr. Bock was doing on his behalf. Clearly, the letter from Mr. Bock to the first respondent's Department of 15 November 2004 (attaching the “second” application) states that Mr. Bock was acting on behalf of the applicant, and asserts matters put by the applicant. The letter significantly makes reference to the “second” application, and of the counselling given to the applicant as to the likelihood of success, and states that the applicant had directed Mr. Bock to continue with the “second” application on his behalf. It was always open to the applicant to put forward evidence, for example from his wife or Mr. Bock, to corroborate his statement that his wife engaged this agent, and that he had no actual knowledge of what exactly the agent was doing. No such evidence was put before me, and nor was there any indication of any such evidence being available, by way of submission for example. Given the large number of written submissions made in this case the applicant had ample opportunity to have made reference to any available evidence.

4. Further, information before the Migration Review Tribunal, to which it referred in its letter of 24 December 2004 (SAB-1 of the affidavit of Ms. Burnett of 10 October 2005 at pages 78 to 80) sent to the applicant’s migration adviser (Mr. Bock), with a copy “e-mailed” to the applicant at the Villawood Immigration Detention Centre, led to its requesting comment from the applicant relating to the applicant’s location, on 20 October 2004, by the Australian Federal Police at Sydney Airport while attempting to depart Australia on a false Australian passport (a matter for which it appears he was subsequently charged and convicted). Relevantly this concerned the issue of how the applicant came into possession of the passport (obtained from his agent in 1999).

5. The applicant gave evidence before the Migration Review Tribunal on 31 December 2004. The Migration Review Tribunal (see paragraph 56 of its decision record at page 99 of SAB-1 of the affidavit of Ms. Burnett of 10 October 2005), did not accept the applicant's evidence. In particular, it did not accept that in 1999 he had merely acted on the advice of an agent who persuaded him to apply for a protection visa, and that he thought the subsequent production of an Australian passport was the outcome of that successful application. The applicant, as the Migration Review Tribunal found, was not able to explain why he obtained this advice and spent $10,000 (that he claimed it cost him) when, according to his evidence before the Migration Review Tribunal, he only wished to complete his studies and return home. The Migration Review Tribunal further found that when he was given the passport he did not finalise his studies, or attempt to return to his family until almost four years later. Even in circumstances where he met his (de facto) wife two years after he obtained the passport. Further, the Migration Review Tribunal did not accept the applicant's evidence that he had no knowledge of the protection visa application, and its progress once he did it become aware of it, and did not accept that “he was so gullible that he did not even check with anyone whether the advice was correct or whether the fee of $10,000 seemed high”.

6. He claimed before the Migration Review Tribunal in December 2004 that “he had not been aware” that an application for a protection visa was then lodged for him in August 2000. Further, the applicant told the Migration Review Tribunal that when he sought to depart Australia in October 2004 using an Australian passport for which he was subsequently arrested and detained, that:

   “He maintained [at the hearing before the MRT on 31 December 2004] that he did not intend to do anything wrong did not realise that he was not an Australian citizen.” [see page 43 (page 96 for an exact but clearer copy) at paragraph 34 of SAB-1 of the affidavit of Ms. Burnett of 10 October 2005].

   Further [paragraph 56 at page 46 (page 99 for an exact but clearer copy) of SAB-1 of the affidavit of Ms. Burnett of 10 October 2005]:

   “The visa applicant also denied all knowledge of the lodging of the protection visa application almost nine months later and the subsequent review.”

   Yet before this Court he maintained in evidence that he did know of the protection visa application of August 2000. The inconsistency of his accounts remains unexplained.

7. At the very least at the time of the hearing before the Migration Review Tribunal, and certainly when the Migration Review Tribunal made its decision and sent it to the applicant (his adviser as authorised recipient), the applicant would have most certainly been aware, given the matters reported on by the Migration Review Tribunal that it discussed with the applicant at the hearing it conducted with him (and certainly given the Migration Review Tribunal’s decision record) that, at best for the applicant, at 31 December 2004 - the date of the hearing, he would have known that his earlier application to the Tribunal to review the protection visa refusal had been unsuccessful.

8. In all therefore, I am satisfied that by reference to the Migration Review Tribunal’s record that by at least 15 November 2004 the applicant would have known of the Tribunal's decision, and that he certainly would have known at the end of December 2004. Yet the application to this Court was not made until May 2005.

9. While there is certainly basis to say that the period of unexplained delay is more than three years (the letter of notification to the agent, the applicant’s submissions of 15 December 2005, the applicant’s contradictory evidence as to what occurred in 1999 and 2000 and what he knew, or did not know, in relation to matters pursued on his behalf) there is certainly a clear point – mid November 2004, when the applicant did know of the Tribunal’s unfavourable decision. Even if the delay therefore is taken as from 15 November 2004, I would regard that period of the applicant's delay in bringing the matter before this Court, in all the circumstances as presented above, as unwarrantable. It was always open to the applicant in November 2004 to have sought judicial review of the Tribunal's decision, rather than pursue a “second” application for a protection visa based on what were described as “new claims”. In all the circumstances and in light of the other evidence before me, and without any corroboration from other sources whatsoever, I do not accept the applicant’s evidence before me that he did not know of the Tribunal's decision regarding the protection visa refusal when the “second” application for a protection visa was made on 15 November 2004. The letter from his then agent (Mr. Bock) is clear in stating that the agent was acting under direction and instruction from his client.

10. I am satisfied on all the material before me that at least by mid November 2004, the applicant was aware of the Tribunal's decision, and rather than challenge the Tribunal’s decision, chose to pursue other avenues to remain in Australia. Like the Migration Review Tribunal in relation to an earlier period, I do not see the applicant's assertion now as an acceptable explanation, that he did nothing to obtain the Tribunal's decision until this was sent to him in May 2005. The Migration Review Tribunal’s decision record makes it very clear that the earlier Tribunal (Refugee Review Tribunal) decision had been made, and was unfavourable to the applicant and yet the applicant’s evidence is that he still took no steps to obtain the Tribunal's decision but waited until it was sent to him some four or so months later. In fact the applicant’s evidence, initially at least, was that he had no knowledge of it until May 2005. A position that in light of the other material before me I do not accept. Particularly, given the Migration Review Tribunal’s statement as to the earlier Tribunal decision (at paragraph 56 of its decision record – SAB-1 of the affidavit of Ms. Burnett of 10 October 2005 at page 46), I find the applicant's evidence that he then still waited and did nothing until May 2005 to obtain the Tribunal's decision record as unsatisfactory.

11. The history of the applicant's dealings with the Tribunal, his applications to the respondent’s Department and his application before the Migration Review Tribunal reveal the actions of an applicant who is prepared to make applications and to allow matters to proceed without making any real enquiry as to their progress. The applicant complained in written submissions that the Tribunal originally took two years after he made the application for review to write to him to invite him to a hearing. While the applicant now complains about this state of affairs, there is nothing before me, and nor has he asserted, that he made any attempt to approach the Tribunal either himself, or more particularly given that he had a representative, through his representative, to complain about this delay at the time. Nor for that matter does the applicant present as an uneducated or illiterate person (in fact he came to Australia as a student) lacking in the capacity to act with appropriate impulsion in the conduct of his affairs.

12. In all therefore, I find that the applicant had notice of the Tribunal's decision for some time at least from mid-November 2004. The period of delay which is clear, and not satisfactorily explained before me, is at least 5 ½ months. As has been said the issue of the period of such delay should not be reduced to a mere mathematical (“arithmetic”) formula. I refer to Applicant S1338 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 52 where Stone J., at [20] states:

    “Having said this, I do not consider that the question of unwarrantable delay ought to be answered simply by accumulating periods of delay in the conduct of the proceedings, without regard to the circumstances surrounding this delay; it is not a simple arithmetic exercise…”

13. At the heart of the authorities relating to delay in instigating proceedings where an applicant is aggrieved (as in this case by a Tribunal decision) is that once having become aware that a Tribunal has made an adverse decision an applicant should proceed, not necessarily in undue haste, but clearly in a reasonable and timely manner to seek relief from the Courts for the wrong that is felt to have been done.

14. In exercising the particular discretion to grant the relief sought by an applicant such as the one before me, guidance may be obtained (obviously not as it applies to considering unwarrantable delay in a prescriptive way) from such things as relevant legislation and rules of Court. In the case of refugee applicants generally there is an expectation that such matters be brought before a Court within 28 days after learning of an adverse decision. But ultimately the exercise of the discretion must be guided by the circumstances in each individual case and the actions of the aggrieved party. The guidance provided by McHugh J. in SAAP at [80] (as cited above) for example, particularly shows the importance of examining what the aggrieved party has done in pursuing the object of their complaint. Inconsistent conduct, acquiescence in the invalidity of the decision, or coming with “unclean hands” are all relevant considerations.

15. In the case before me the applicant applied for refugee recognition on 25 August 2000, while claiming before the Migration Review Tribunal that he had no knowledge of this application, he claims now that he did have this knowledge. While there is some doubt as to the exact date on which he became aware of the Tribunal decision to effectively reject his refugee claims, it is clear that at least some time earlier, and certainly by mid November 2004, the applicant became aware of the Tribunal’s decision. He chose not to come to Court to pursue his complaint, but with the benefit of migration agent advice (and it appears from Mr. Bock’s letter of 15 November 2004 (see page 1 of SAB-1 of the affidavit of Ms. Burnett of 10 October 2005) contrary to this advice) to seek to make a “second” application for a protection visa based on “new claims”. The clear implication being that he knew of the adverse Tribunal decision, but sought to press “new claims” instead of seeking redress for what he now claims to be a “tainted” Tribunal decision. This also appears to have coincided with his apprehension at Sydney Airport in possession of a “false” passport, and his subsequent detention pursuant to the Migration Act. At best the applicant explains his actions between the time of the application to the Tribunal relating to his “first” application for a protection visa as either waiting to hear from the Tribunal, or from the explanation given to the Migration Review Tribunal, which is significantly at odds with what he has said relevant to this issue in this Court, that he did not know of the application made in 2000, but thought he had applied for protection in 1999 (following advice from his migration agent) and that he had been successful when he received an Australian passport.

16. Further, having been “refused” the “second” application for a protection visa, the applicant then pursued review of another adverse visa decision- the refusal of a Bridging Visa E including pursuing this issue before the Federal Magistrates Court. Having been unsuccessful in this regard in January 2005, it was not until 6 May 2005 that the applicant then complained to this Court of the Tribunal’s adverse decision. The applicant’s actions, in the sense even more than the passage of the actual time, do not reveal the sense of grievance (or any real sense of urgency) that he now professes in relation to being (as he put it “unfairly”) denied an opportunity for a hearing before the Tribunal to pursue the more serious matter of a threat to his safety, or even his life, if he were to return to India (a place to which incidentally – according to what was before the Migration Review Tribunal – he intended (as at December 2004) to return to visit his family and to make arrangements for his marriage).

17. In considering unwarrantable delay the exercise is more than an arithmetic calculation. In the case before me the applicant indicated an intention contrary to seeking review by the Court [in making the “second” protection visa application] and then pursued another visa matter, ultimately also before the Court, and only then after the unsuccessful disposition of that matter and after at least some 5 ½ months, came to this Court with his grievance about the Tribunal’s decision. The applicant has not satisfactorily explained his actions in this regard or the contradictions in the material before me. It is difficult to see the applicant’s actions (over the longer period since he came to Australia) other than as a person who came to Australia as a student and, on the version of events he gave to the Migration Review Tribunal, applied for a protection visa in 1999 because he was advised to do so even though his intention was to seek another student visa, or on the (more probable) version given to this Court, applied in August 2000 and then “sat back” and waited for the process to unfold. When seen against this background his more recent pursuit of other visa matters (once having been located and detained) without, at least at the same time, pursuing this particular (and in the Court’s view ultimately most important matter given the direct link to threats to his safety and even his life) can only be seen as the actions of an applicant coming before the Court with unexplained delay and having exhibited action inconsistent with his now stated grievance, acquiescence in the Tribunal’s decision and even (particularly in the context of his contradictory evidence and submissions) “not clean hands”.

18. For these reasons I do not exercise the discretion to grant the relief sought by the applicant and I dismiss the application to this Court.

19. Given observations made in this Judgment concerning the manner (and substance) of presentation of some material to this Court during these proceedings, I want to note the following. No criticism whatsoever is intended of Ms. Frugtniet, (who is not legally qualified) nor Mr. Seyfarth. The Court accepts that they both acted to assist an unrepresented applicant and did so with honest intent. I thank them for this. For the respondent, no criticism whatsoever is intended in relation to Mr. Chami. Whatever lack may have occurred in the preparation of this case, it cannot involve Mr. Chami as I accept his submission that he became involved in this case for the first time on the “eve” of the second hearing. Notwithstanding this, I found his submissions at the second hearing to be helpful.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Sybilla Waring-Lambert

Date:  13 April 2006