Judiciary Act 1903 (Cth), s.39B

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62

Applicant P 40/2003 v Refugee Review Tribunal [2004] FCA 936

Applicant V346 of 2000 v Minister for Immigration and Multicultural Affairs [2001] FCA 1179; (2001) 111 FCR 536

Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602

Haoucher v Minister for Immigration [1993] FCA 215; (1993) 42 FCR 287

House v R [1936] HCA 40; (1936) 55 CLR 499

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Minister for Immigration and Multicultural Affair v Yusuf (2001) 206 CLR 323

Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140; (2003) 131 FCR 1

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553

Muin v Refugee Tribunal [2002] HCA 30

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389

Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57

Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Repatriation Commission v Vietnam Veterans' Association [2000] NSWCA 65; (2000) 48 NSWLR 548

Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73; (2001) 109 FCR 18

SZAXF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1464; (2003) 133 FCR 496

Tracy v Repatriation Commission [2000] FCA 779; (2000) 101 FCR 149

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511

X v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 319

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

(1) Order that the decision of the Refugee Review Tribunal in matter number N03/47117 handed down on 15 April 2004 be set aside.

(2) Order that the Refugee Review Tribunal hear and determine that matter in accordance with law.

(3) Liberty to the applicant to apply for an order in relation to costs.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

1. This is an application under s.483A of the Migration Act 1958 (Cth) which seeks that a decision of the Refugee Review Tribunal handed down on 25 March 2004 should be "sent back to the Tribunal for reconsideration". In that decision, the Tribunal affirmed a decision of the delegate of the Minister dated 30 June 2003 which refused an application by the applicant for a protection visa. The application to this court was filed within 28 days of notification of the Tribunal decision.

2. Section 483A gives the court "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". The relevant jurisdiction of the Federal Court is its judicial review jurisdiction conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and by s.39B of the Judiciary Act 1903 (Cth), but both are subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76] and subsequent cases, these limitations require the court to be satisfied that the Tribunal's decision was vitiated by jurisdictional error before it can grant the relief sought by the applicant.

3. I have come to the conclusion that jurisdictional error should be identified in the proceedings of the present Tribunal, and that the matter should be remitted for further consideration by the Tribunal. In summary, this is because the Tribunal exercised a procedural discretion under s.424C(1) and (2) of the Migration Act to deal with the appeal summarily without inviting the applicant to a hearing, but did so under a misapprehension that the applicant had deliberately decided not to furnish information which the Tribunal lacked because the Department had lost the applicant's file. The Tribunal failed to take account of information available to it which contradicted the foundation of its opinion, and this vitiated its procedural decision. The invalid procedural decision caused the Tribunal to fail to observe a mandatory duty under s.425(1) to invite the applicant to a hearing before concluding its review. Its substantive decision was therefore not a valid performance of its jurisdiction and must be set aside.

4. The applicant lodged his application for review by the Tribunal on 4 August 2003. The application was signed with Chinese characters. It gave the applicant's "home address" as an address in Mascot, and his "mailing address" as "Room 117, Level 1, 42A Dixon St, Haymarket. NSW". This was also shown as the address of an "authorised recipient" named as "Orchid SIT, Feng Hing P/L".

5. In response to the question "please tell us why you consider yourself to be a refugee", the form stated:

I am a Falungong member. The Chinese authorities have banned Falungong. I was involved with its activities both in China and in Australia. So many other members have been suffering persecution in China. They are all suffering mental or even physical torment. I will be persecuted on my return to China. My application was refused by DIMIA and I believe I can not return to China now. I hope that my application can be assessed favourably.

6. On 5 August 2003, the Tribunal wrote to the applicant saying:

"we have asked the Department ... to send us its file so that the Tribunal can review your application for a protection visa. When we get your file, we will decide if we can consider your review application. If we can consider it, a Member of the Tribunal will look at the information you and DIMIA have given us and information about your country."

7. Under s.418(2) of the Migration Act, it was the Secretary's duty "within 10 working days after being notified of the application" to give to the Registrar copies of a statement about the delegate's decision which set out his findings of fact, referred to the evidence on which they were based and gave the reasons for the decision. Such a document was received by the Tribunal on 11 February 2004. There is no evidence before me explaining the delay.

8. In the delegate's decision, the applicant's claims to refugee protection are identified by reference to the Department's file:

The applicant's claims are contained in a submission attached to the file at folio 20.

In summary, the applicant arrived in Australia on 19 May 2003 and made an application for a Protection visa on 30 June 2003.

The applicant claims that he was a follower of Falun Gong in the PRC, and that he will be persecuted for this reason when the PRC authorities discover his involvement.

9. Under s.418(3) it was the Secretary's duty "as soon as is practicable after being notified of the application, (to) give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision". Plainly this is intended to bring to the Tribunal at least the file of relevant documents which had been before the delegate. The Minister admits before me that no such documents were ever given to the Tribunal and claims that "the Departmental file was lost", but has led no evidence to establish this conclusion.

10. I explored with counsel for the Minister what was the effect of the Secretary's failure to forward the file to the Tribunal. He submitted that the Secretary was under no duty if the file could not be found and that, in any event, a non-compliance with the s.418(3) duty would not affect the validity of the proceedings in the Tribunal. I accept the latter of these submissions on the authority of Muin v Refugee Tribunal [2002] HCA 30 at [21], [42-48], [56], [179-80], [250-1], [318] and [326] (c.f. Kirby J at [219] and [225], see also Applicant P 40/2003 v Refugee Review Tribunal [2004] FCA 936 at [35-6]). The absence of the file does not, therefore, vitiate the subsequent proceedings of the Tribunal. It did, however, provide an important consideration for the Tribunal when deciding how to perform its duty to "review" the delegate's decision (see s.414).

11. On 26 February 2004, the Tribunal posted by registered post three copies of a letter dated that day. They were addressed to the applicant at his stated Mascot home address, to him "c/- Feng Hing P/L" at the Dixon St address, and to Orchid Sit at that address.

The Tribunal requests that you provide the following additional information.

Unfortunately, the DIMIA file on your application is unavailable. We do, however, have the DIMIA delegate's decision.

1. Certified photocopies of every page of your passport.

2. Where did you live for the last ten years until your departure from China?

3. Give details, including dates, of your education.

4. Give details of your employment since finishing your education.

5. When did you become a Falun Gong practitioner? Give the date.

7. Do you have any evidence of your connection to Falun Gong in China and Australia?

8. What harm did you suffer because of your adherence to Falun Gong? Give details.

9. How did the authorities find out that you were a Falun Gong practitioner?

11. You obtained your passport and exit visas without difficulty and left China legally. This suggests that the authorities do not have an adverse interest in you. The following independent country information is about exit procedures in China [extract from DFAT cable omitted]. Do you have any comments on this information?

12. The following country information is about the differential treatment which the Chinese authorities extend to ordinary Falun Gong members, compared to leaders or organizers of demonstrations and so on: [extract from information omitted]. Do you have any comment on this information?

13. Do you practice Falun Gong in Australia or have any other connection with Falun Gong in this country? With whom? How often? Please provide the names and contact numbers of any members of the Falun Dafa organization with whom you have been in contact in Australia.

14. What points in the delegate's decision do you disagree with? Explain why you disagree with each point.

This information is to be provided in writing and must be received at the Tribunal by 22 March 2004.

IF YOU DO NOT PROVIDE THE ADDITIONAL INFORMATION BY 22 MARCH 2004 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE."

13. I consider that this letter constituted an invitation "to give additional information" made under s.424(2) and also to "comment on" information made under s.424A(1). I consider that it sufficiently complied with the requirements as to content specified in s.424B(1). It is unnecessary to set these out.

14. Under s.424B(2) the invitation is required to specify "a period", "being a prescribed period", within which the information or comments are to be given. Migration Regulations 1994 reg 4.35(3) prescribes a period which "starts when the person receives the invitation and ends at the end of 14 days after the day on which the invitation is received."

15. Under s.424(3) such an invitation "must be given to the person ... by one of the methods specified in s 441A". One such methods is by dispatch by prepaid post within 3 working days of the date of the document to "the last address for service" or to "the last residential or business address" provided to the Tribunal by the recipient in connection with the review (see s.441A(4)). Under s.441C(4) "the person is taken to have received the document ... 7 working days ... after the date of the document".

16. Applying these provisions, I am satisfied that the letter properly identified 22 March 2004 as the date by which the applicant needed to lodge a response or risk a decision by the Tribunal that it would proceed in the manner permitted by s.424C, that is, without inviting him under s.425 to appear before the Tribunal to give evidence and present arguments. These two sections provide:

424C Failure to give additional information or comments

(a) is invited under section 424 to give additional information; and

(b) does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

(a) is invited under section 424A to comment on information; and

(b) does not give the comments before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.

(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.

(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.

17. In the Court Book filed by the Minister is a copy of the envelope and letter sent to the applicant at the Mascot home address, both with the Tribunal's "received" stamp dated 26 March 2004. The envelope has Post Office markings "return to sender" and "unclaimed". I infer, and the Minister's counsel does not dispute, that this shows that the letter sent to the applicant's nominated "home address" was in fact not received nor opened by any person at that address or outside the Tribunal, but was returned unclaimed to the Tribunal on 26 March 2004.

18. On 29 March 2004 a letter was sent to the applicant c/- Feng Hing P/L at the Dixon St address, with a copy sent to Orchid Sit at a new Hurstville address, which informed the applicant that a decision of the Tribunal would be handed down on 15 April 2004. There is nothing in the evidence before me to explain how the new address for Orchid Sit came to be known. This letter was not sent to the applicant's "home address". It seems reasonable to infer that this was because it was then known within the Tribunal that previous correspondence to that address had been returned unclaimed.

19. On 15 April 2004 a letter was sent to the applicant c/- Feng Hing P/L at Dixon St and to Ms Orchid Sit at Hurstville, which enclosed the present decision of the Tribunal. The decision is noted as being "handed down" on 15 April 2004, but has the date 25 March 2004 written next to the member's signature and initialled stamp.

20. Counsel for the respondent accepted that the date of the Tribunal's decision is the date of handing down, and referred me to s.430B(4) of the Act which expressly states this. It is established that a Tribunal's duties in relation to the conduct of its review are not completed, and it is not functus officio in relation to its decision-making on the review, until that date (see Applicant V346 of 2000 v Minister for Immigration and Multicultural Affairs [2001] FCA 1179; (2001) 111 FCR 536 at [77]).

21. In its reasons signed three weeks before the decision was handed down, the Tribunal member explained that he had decided to proceed summarily under s.424C taking further action to contact the applicant or invite him to a hearing. Unfortunately, before handing it down he did not reconsider this decision in the light of the fact, shown on the applicant's Tribunal file, that the s.424 request sent to the applicant's home address had been returned unclaimed to the Tribunal on the day after the decision was signed. This is clear from what is said in his reasons set out below, and also from the dating of the signatures on his reasons the day before the letter was returned. It is not disputed by counsel for the respondent.

22. The Tribunal's reasons refer to the fact that "the DIMIA file is not available. The Tribunal has been advised that it has been lost." However, it says it has had regard "to the material referred to in the delegate's decision, and other material available to the Tribunal from a range of sources." It says "In the absence of the DIMIA file, pursuant to s 424 of the Act the Tribunal wrote to him on 26 February 2004 at my direction explaining that the DIMIA file on his application is unavailable though the Tribunal does have the delegate's decision." The contents of the letter are then fully set out. The Tribunal then explains why it was decided to proceed summarily without attempting to invite the applicant to a hearing:

The letter to the applicant was sent by registered post and has not been returned to the Tribunal. A copy was sent to his adviser. Hence I am satisfied that the applicant is aware of the Tribunal's request for further information and has determined not to respond.

The Act provides that the Tribunal must invite an applicant to appear before it to give evidence and present arguments (s.425(1)). However, this does not apply where an applicant is invited under s.424 to give additional information and does not give the information before the time for giving it has passed. In those circumstances, the applicant is not entitled to appear before the Tribunal (ss.424C(1), 425(2)(c), 425(3)).

Although the Tribunal is not compelled to proceed to a decision without offering the applicant a hearing in all cases where an applicant is invited under s.424 to give additional information and does not give the information before the time for giving it has passed, I consider that such a course of action is appropriate in this instance. The applicant has had ample opportunity to provide details of why he is seeking recognition as a refugee from China. Furthermore, as he did not respond to the Tribunal's invitation, it may be inferred that further invitations to him are very likely to prove fruitless. Accordingly, I have decided to proceed to a decision on the review without taking any further action to obtain additional information from the applicant, and without inviting him to a hearing.

Pursuant to Section 424 of the Act the applicant was invited to give detailed information about his claims of fearing persecution for being a Falun Gong member, in the Tribunal's letter to him of 24 February 2004. He has not responded. All I have before me is the extremely limited information in the delegate's decision and hence further information was essential for me to understand and assess whether the applicant's claims bring him within the Convention definition of refugee. He was put on notice that the information was required by the date specified in the letter to him and that if he did not respond the Tribunal may proceed to a decision without further notice. He has failed to provide the requested information by the due date.

Accordingly, I am unable to be satisfied on the evidence before me, that the applicant has a well-founded fear of persecution for a Convention reason in China. (emphasis added)

23. Counsel for the respondent accepted that the Tribunal was correct in thinking that, in the circumstances as they appeared to the Tribunal, it had a discretion whether or not to invite the applicant to a hearing. I consider that this is clearly correct and is shown in the words "may make a decision" in s.424C(1) and (2). Only if that discretion is exercised adversely against an applicant, is the Tribunal relieved from the mandatory requirement to invite the applicant to a hearing (see s.425(2)(c)).

24. I consider that it is clear from the Tribunal's reasons that the decisive consideration in the Tribunal's mind when proceeding summarily was its opinion that "the applicant is aware of the Tribunal's request for further information and has determined not to respond". I consider that this conclusion as to an unresponsive state of mind on the part of the applicant was based significantly, if not principally, upon the Tribunal's belief that the letter sent to the home address "has not been returned to the Tribunal". The sentence following this phrase shows that it is clearly a reference to the letter sent to the home address, and not to the agent. It was natural, in the circumstances, for the Tribunal to be concerned whether the applicant had actually received its request as well as whether he was deemed to have received it. In my opinion a fair reading of the Tribunal's reasons shows that its decision to take no further action was the result of its opinion that the letter sent to the applicant had not been returned to the Tribunal, and that this allowed it to infer that he had actually received the letter at his home address and had decided not to respond.

25. However, evidence that the converse was true was in the possession of the Tribunal at the time that it gave its decision and there should have been administrative procedures to bring it to his attention. It has obviously not been taken into account by the decision-maker. Even if, in fact, it was not drawn to the Tribunal member's attention, I consider that, given the length of time between the return of the letter to the Tribunal and the delivery of the decision, he should be held to have had constructive notice of the true facts as shown on the Tribunal file. The situation was analogous to the constructive notice which the Minister was held to have had in Peko-Wallsend (see citations below), and which the Tribunal was held to have had of the adjournment application in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (see [2], [14], [20], [41-43], [163-4]). I consider that SZAXF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1464; (2003) 133 FCR 496 is distinguishable in this respect (c.f. Stone J at [6-7]).

26. Had the true situation in relation to the return of the letter been taken into account, as in my opinion it should have been, I consider it likely that the Tribunal would not have proceeded as it did, but would have taken further action to attempt to make contact with the applicant before completing its review. Certainly, I cannot be satisfied that it would not have done so, particularly given the circumstance that the reason for the Tribunal's lack of evidence on the applicant's claims was the loss of the Department's files through no fault of the applicant.

27. The applicant, who has been without legal assistance in the presentation of his case to the Court, filed an amended application which complains that the Tribunal acted on a "serious mistake" when refusing his application because:

I have notified to change my address, I moved away from (home address) Mascot NSW 2020; however, the Tribunal officer did not change my address for me. Meanwhile, my previous migration agent did not receive the correspondence from the tribunal. As a matter of fact, I did not receive the letter dated 26/02/2004 from the Tribunal and I was deprived of the right of attending a hearing as almost all other applicants can have one.

28. At the hearing before me the applicant accepted my invitation to give evidence on oath about these claims. Although his evidence required the use of an interpreter and at times was unreliable, I am reasonably satisfied that in fact the request for information never came to his attention before the Tribunal announced its decision. No cross-examination was directed at establishing otherwise. I accept that the applicant was reliant upon a friend called Yuan to fill out the RRT appeal form and to assist him with its lodgement and progress, and that he was unaware of the involvement of a migration agent called Orchid Sit and that the agent's former Dixon St address had been given to the Tribunal. I also accept that it was the friend's address at Mascot which was shown as the applicant's "home address" "because my English is poor and whenever English is required I asked my friend to help me." I accept that the applicant thought that the Tribunal had been told when the friend ceased to live at that address, and I accept the applicant's evidence that "I did tell my friend to notify the tribunal about changing address but apparently he did not do that, that's my mistake."

29. The issue for my determination is what was the legal effect of the Tribunal's failure to take into account the information reaching the Tribunal prior to its decision which plainly contradicted its critical finding of fact that the letter sent to the applicant's home address had not been returned to the Tribunal, accepting that this finding was a critical reason for its decision to conclude its review summarily.

30. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 44-5 Mason J held that the appellant Minister was bound to take into account "the most recent and accurate information that the Minister has at hand" on a factor "vital to the exercise of the Minister's discretion." He said:

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-manner, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

31. Gibbs CJ at 30 expressed general agreement with Mason J, and framed a duty on the Minister in a similar way. Brennan J at 67 held that the Minister at least had a duty to inquire into the new information. Deane J at 70 held that the Minister was not "entitled simply to ignore, or to remain uninformed about, the very existence of the additional material." Dawson J agreed with Mason J at 71. The general principle identified by Mason J was quoted with approval by Gaudron and Gummow JJ in Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 at 624, and has been applied in many cases (e.g. Haoucher v Minister for Immigration [1993] FCA 215; (1993) 42 FCR 287 at 296, Tracy v Repatriation Commission [2000] FCA 779; (2000) 101 FCR 149 at 152, c.f. Repatriation Commission v Vietnam Veterans' Association [2000] NSWCA 65; (2000) 48 NSWLR 548 at [58]).

32. The principle has been applied to decision-making by a tribunal under the Migration Act in relation to information reaching the tribunal at any time up to the date of delivery of its decision (see X v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 319 by Gray J at [13-18] with whom Moore J agreed at [48-32]. Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73; (2001) 109 FCR 18 by Merkel J at [19-27].)

33. I consider that the principle identified by Mason J applies to the procedural discretion under s.424C as much as to the Tribunal's substantive consideration of a matter under review. The discretion to deprive an applicant of the normal right to attend an oral hearing should be exercised by balancing considerations of procedural fairness for the individual against considerations of efficiency of general Tribunal procedures. When performing this balance, the Act must intend that the Tribunal should have regard to all the circumstances of the case known to the Tribunal up to the last possible occasion for allowing the matter to proceed to hearing. In the present case, the last occasion was the date when the Tribunal delivered its decision without having invited the applicant to a hearing.

34. On my above findings, the Tribunal has failed to conform to its duty to take into account at that time the most recent information available to it on an issue of fact material to its decision to apply s.424C and to conclude its review without inviting the applicant to a hearing. In my opinion this failure was a jurisdictional error which vitiated the Tribunal's exercise of its s.424C decision (c.f. Moore J in X v Minister for Immigration (supra) at [52] citing Minister for Immigration and Multicultural Affair v Yusuf (2001) 206 CLR 323; and WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511 at [60-1]). I do not consider that SZAXF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1464; (2003) 133 FCR 496 provides authority inconsistent with my reasoning in this respect, in particular, since the contrary dicta of Stone J at [27] did not address the effect of a failure to comply with the Peko Wallsend duty nor the authorities I have cited above and in the next paragraph.

35. In my opinion, the Tribunal's failure validly to exercise its s.424C power also resulted in it constructively failing to exercise its jurisdiction to review the delegate's substantive decision, since by reason of s.425(1) that jurisdiction was conditional upon the applicant being invited to a hearing unless this was validly denied under s.424C (c.f. Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 per Gleeson J at [14], Gaudron and Gummow JJ [43-44], McHugh J at [67], Hayne J at [148-9], Callinan J at [163-4]; Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140; (2003) 131 FCR 1 at [12-3], [60], [91-102]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [41], Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62 at [23], [27]).

36. For the above reasons, I consider that the applicant has made out an error in the proceedings of the Tribunal which rendered its decision handed down on 15 April 2004 not a "privative clause decision" caught by s.474(1), so that the applicant is entitled to relief under s.16 of the ADJR Act or s.39B of the Judiciary Act. In the present circumstances, I consider the appropriate orders would be an order setting aside that decision, and an order that the Refugee Review Tribunal hear and determine the application received by it on 4 August 2003 according to law.

37. In supplementary submissions filed subsequent to the hearing which dealt with the above issues, counsel for the Minister accepted that for the Tribunal to proceed to exercise a discretion on an erroneous understanding of the facts might be a ground for a reviewing body to interfere with a discretionary decision. He cited the principles identified in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505 which have at times been applied by analogy to judicial review of administrative decision, but I have preferred to rest my conclusions on the Peko-Wallsend principle cited above.

38. Counsel argued that I should not find that the Tribunal proceeded on an erroneous factual conclusion, because its reasons also referred to the fact that the 26 February 2004 letter had been sent to the applicant's nominated migration agent without response. However, as I have explained above, I consider that the Tribunal has given, at least, material weight on its finding that the letter to the applicant's home was not returned to the Tribunal. I do not read its reasons as suggesting that this finding was a discrete and severable reason for its inference that the applicant had "determined not to respond" and hence its decision to proceed summarily.

39. Counsel further submitted, as I understood it, that if the Tribunal's discretion miscarried there was no relevant denial of procedural fairness and consequential jurisdictional error because, by reason of the operation of s.422B in relation to ss.424C and 425, the applicant's entitlements to procedural fairness by way of a hearing were exhausted by the sending of the letter to his nominated address for service and residential addresses regardless of whether in fact they had been received.

40. I do not accept this submission. I consider that the Peko-Wallsend principle which I have applied does not require that I should be satisfied that the Tribunal's error has also provided the applicant with a ground of review based on a failure to accord procedural fairness by way of a hearing. Moreover, if the procedures under ss.424C and 425 are seen as a codification of a procedural fairness right to be invited to a hearing, then the authorisation of the Tribunal to proceed in the absence of an invitation is conditional upon a valid exercise of the discretion in s.424C, and not just upon satisfaction of the preconditions to the exercise of that discretion. On my above findings, that code has not been observed in the present case.

41. It was also suggested that if the preconditions for the exercise of the s.424C discretion had been satisfied, then there could be no jurisdictional error in acting on an error of fact when exercising the discretion. However, in my opinion, the authorities I have cited above properly allow a failure to perform the Peko-Wallsend duty when making a finding of fact critical to a discretionary decision to be characterised as a jurisdictional error vitiating that decision. If so, it is irrelevant that no error occurred when the Tribunal considered the preconditions to the exercise of discretion.

42. Finally, counsel for the Minister submitted that the court should, in its discretion, decline to grant relief, since the letter of 26 February had been sent to the applicant's mailing address and to his authorised recipient, and that the applicant "had means of knowing the letter". It was submitted that the applicant had not satisfactorily explained why he did not become aware of the letter, and that he had not shown "by any evidence that he suffered any practical injustice in the circumstances".

43. I do not accept these submissions. The onus of persuading the court not to grant relief once jurisdictional error has been found is on the respondent, and is not dependent upon an applicant establishing "practical injustice" (c.f. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [51-3], [140]; Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57 at [106], [152], and [215-222]). I am not satisfied in the present case that the conduct of the applicant which I have described above provides any grounds which would make it just or proper to withhold relief in this case. Indeed, in the circumstances, I consider that it would serve the interests of justice and good administration of the Migration Act that he should be given an opportunity to present and have his claims for refugee protection properly considered by the Tribunal (c.f. Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62 at [91-93]).

44. I shall make the orders indicated above. Although at present there is nothing before me to suggest that the applicant has incurred any expenses recoverable under a costs order, I shall give him liberty to apply in relation to costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Smith FM