The application for judicial review
11 In the application for judicial review, the applicant was unrepresented and spoke through an interpreter. However the issue he raised was clearly articulated. It was simply that there had been no hearing at which he gave oral evidence and there should have been. Before addressing that question it is necessary to set out briefly some of the facts leading to the decision of the Tribunal.
12 The applicant stated in the application form lodged with the Tribunal that he had an adviser acting for him. The adviser was identified in the form as was an address for service of documents on him. The address for service was the adviser's address. In a notice dated 11 December 2000 from the Tribunal sent to the applicant at the adviser's address, the applicant was informed first that there would be a hearing of the Tribunal at which he could give oral evidence and secondly that the hearing would take place at 9.00am on Thursday 8 February 2001. The notice invited him to attend the hearing and to respond to the invitation by forwarding to the Tribunal before 25 December 2000 a completed form entitled "Response to Hearing Invitation". The applicant's adviser completed the form on, I infer from its date, 9 January 2001 and returned it to the Tribunal. The date stamp indicating when it was received by the Tribunal is not entirely clear but it was sometime in January 2001. The adviser indicated in the completed form that the applicant wanted to come to a hearing.
13 In a letter dated 6 February 2001 to the Tribunal, the adviser asked that the hearing be rescheduled. The adviser stated that the applicant was in Queensland and the adviser had been unable to contact the applicant. On one view of this letter, it might be inferred that the response dated 9 January 2001 to the invitation was completed without the express instructions of the applicant and that at the time it was completed and afterwards, the applicant was unaware that there was to be a hearing on 8 February 2001. However, for reasons which I explain shortly, this would not have any legal consequences even if it was the preferable inference.
14 The Tribunal was obliged by s 425 in the circumstances of this matter, to invite the applicant to attend a hearing to give evidence. It was obliged by s 425A to do so in a manner prescribed by s 441A. Section 441A(2) provides that an invitation under s 425A (amongst other documents: see subs (3)) can be taken to be given to the applicant by giving it to a person authorised by the applicant to receive documents. While it is not free from doubt, I think the better view is that this provision was satisfied in the present case, by the Tribunal sending the invitation to the person identified by the applicant as authorised to act on his behalf, namely his adviser, given that the adviser's address was also nominated as the address for service. Plainly enough, in fact, the adviser received the invitation because the adviser responded.
15 If, as occurred in this case, an applicant was invited to appear before the Tribunal, but does not appear at the appointed time and place, the Tribunal has a discretionary power to make a decision without taking any further action to allow or enable the applicant to appear before it: see s 426A(1), and as to the obligation to extend the invitation and the powers exercisable if the applicant does not appear see generally: Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472; Hossain v Minister for Immigration and Multicultural Affairs [2000] FCA 842; Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476. In the present case the Tribunal exercised that power and made a decision. Save for one matter, the exercise of the discretionary power appears to have been unexceptionable and certainly does not reveal any judicially reviewable error.
16 The qualification concerns a view expressed by the Tribunal that the it had discharged its obligation to provide the applicant with an opportunity to give oral evidence and "that he has effectively declined that opportunity". This latter observation may reveal reviewable legal error if two matters were established. The first would be that, as a matter of fact, the applicant never knew of the hearing date and the invitation to attend. That would be so if it could be clearly inferred from the letter of 6 February 2001 and other documents that the response to the invitation was completed by the adviser without express instructions from the applicant and the applicant had never been made aware of the hearing date because the adviser had been unable to contact him. The second is that the reference by the Tribunal to the applicant "effectively declin(ing) that opportunity" was to be treated as a finding of fact that the applicant had been made aware of the opportunity and had elected not to attend. These two matters together might, at least arguably, establish that the Tribunal based its decision to affirm the delegate's decision on the existence of a particular fact, and that fact did not exist. However I take the reference by the Tribunal to the applicant "effectively" declining the opportunity, in the context in the Tribunal's reasons in which it is made, as a reference to the consequences of the statutory scheme which permits the invitation to be sent to an adviser who has responded on the applicant's behalf. That is, the applicant was advised of the opportunity through his adviser and can be taken to have declined the opportunity because he did not appear.
17 I dismiss the application and order the applicant pay the respondent's costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.