Rahman v Minister for Immigration and Multicultural Affairs [1999]

MIGRATION - whether applicant given an opportunity to appear before the Refugee Review Tribunal to give evidence - whether applicant notified of entitlement to appear to give evidence

Migration Act 1958 (Cth), ss 425(1), 426(1), 426(2), 476(1)(a), 504(3)

Migration Regulations 1994(Cth), regs 4.39(1), 4.41(1), 5.03(1A), 5.03(1)

Uddin v Minister for Immigration & Multicultural Affairs [1999] FCA 1041, cited

Jones v Dunkel (1959) 101 CLR 298, cited

Sook Rye Son v Minister for Immigration & Multicultural Affairs (1999) 161 ALR 612, discussed

Minister for Immigration & Multicultural Affairs v Capitly [1999] FCA 193, followed

Sun Zhan Qui v Minister for Immigration & Multicultural Affairs (Lindgren J, 6 May 1997, unreported), cited

Budiyal v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 166, followed

MOHAMED TARIQUR RAHMAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 247 OF 1999

JUDGE: SACKVILLE J

PLACE: SYDNEY

DATE: 13 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 247 OF 1999

BETWEEN:

MOHAMED TARIQUR RAHMAN Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: SACKVILLE J

DATE OF ORDER: 13 AUGUST 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1.  The decision of the Refugee Review Tribunal ("RRT") made on 26 February 1999, be set aside.

2.  The matter be remitted to the RRT, differently constituted, to be determined according to law.

3.  The respondent pay the applicant's costs of the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 247 OF 1999

BETWEEN:

MOHAMED TARIQUR RAHMAN Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: SACKVILLE J

DATE: 13 AUGUST 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

The Proceedings

1. The applicant, who is unrepresented and is assisted by an interpreter in the Bengali language, seeks review of a decision of the Refugee Review Tribunal ("RRT") made on 26 February 1999. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant did not respond to a notice sent to his then legal representatives by the RRT, requiring him to advise the RRT if he wished to give oral evidence. Accordingly, the RRT made its decision on the basis of the applicant's claims as set out in written submissions to the Department of Immigration and Multicultural Affairs and to the RRT itself. The RRT found that the applicant, who claimed to be a citizen of Bangladesh, but arrived in Australia using a South African passport, was in fact a citizen of South Africa. In any event, it was not satisfied on the limited material before it that the applicant had a well-founded fear of persecution in Bangladesh for any of the reasons specified in the Convention Relating to the Status of Refugees.

3. The application for review filed by the applicant did not identify any clearly stated or particularised ground of review, although it invoked s 476(1)(e) of the Migration Act 1958 (Cth) ("Migration Act") which provides for a ground of review if the RRT's decision involved an error of law. The applicant's written submissions did not carry the matter very much further, since they merely raised factual issues that are not capable of establishing an error of law or other ground of review available under the Migration Act.

4. At the hearing in this Court, the Minister was represented by Mr Smith of Counsel. In his written submissions, Mr Smith very fairly and properly identified as a possible issue whether the RRT had complied with its obligations under ss 425 and 426 of the Migration Act. In particular, he acknowledged that a question might arise as to whether the RRT had given the applicant "an opportunity to appear before it to give evidence" under s 425(1) and whether the RRT had notified the applicant of the matters specified in s 426(1).

5. The applicant did not file any evidence in support of his case, despite having foreshadowed at a directions hearing a claim that he had never received the notice sent by the RRT. I invited Mr Smith to suggest how the hearing should proceed, in view of the absence of affidavit evidence supporting the applicant's claim. Mr Smith indicated that, if the applicant wished to give oral evidence in support of his claim, he (Mr Smith) was in a position to cross-examine without the need for an adjournment.

6. After the position was explained to the applicant, he chose to give evidence and to be cross-examined. The substance of the applicant's evidence was that, although he had engaged solicitors to act on his behalf in connection with the RRT proceedings, he had never been told that he had to notify the RRT if he wanted to give oral evidence. Mr Smith challenged the applicant's account and it will be necessary to decide whether his evidence should be accepted.

The Legislation

7. Sections 425 and 426 of the Migration Act were, at the relevant time, in the following terms:

"425 (1) Where section 424 does not apply, the Tribunal:

(a) must give the applicant an opportunity to appear before it to give evidence; and

(b) may obtain such other evidence as it considers necessary.

(2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.

426 (1) Where section 424 does not apply, the Tribunal must notify the applicant:

(a) that he or she is entitled to appear before the Tribunal to give evidence; and

(b) of the effect of subsection (2) of this section.

(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice."

Section 476(1)(a) of the Migration Act provides that it is a ground of review

"that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed."

8. Part 7, Div 4 of the Migration Act, including ss 425 and 426 was extensively amended by the Migration Legislation Amendment Act (No 1) 1998 (Cth), but the relevant provisions did not come into force until 1 June 1999, after the date of the RRT decision. Accordingly, this case must be determined by reference to ss 425 and 426 in their unamended form.

9. The Migration Regulations, Div 4.3, deal with service of documents for the RRT. Regulations 4.39 and 4.41, at the relevant times, provided as follows:

"4.39(1) In this regulation:

`lodge an address for service', in relation to an applicant for review, means give the Tribunal notice in writing of an address at which documents relating to a review may be sent to the applicant.

(2) An applicant for review may:

(a) lodge an address for service in a review; and

(b) ....

4.41(1) If:

(a) a document is to be given to, or served on, a person for the purposes of a review by the Tribunal; and

(b) no other provision as to the manner of giving or serving the document is made by the Act or these Regulations;

the document may be given or served:

(c) if the person has lodged an address for service under regulation 4.39, by posting it to, or leaving it at, that address; or

(d) ...."

10. Regulation 5.03 is headed "Time of receipt of document etc that is sent". It provides as follows:

"5.03(1A) This regulation applies to a document sent by the Minister, a Tribunal or review officer to a person in that person's capacity as:

(a) an applicant, of any kind, under the Act or these regulations; or

(b) the holder, or the former holder, of a visa.

5.03(1) For the purposes of these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document that is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is either:

(a) if the document is sent from a place in Australia to an address in Australia - 7 days after the date of the document; or

(b) ....

(2) Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document."

11. Regulation 5.03 reflects amendments which were effected by the Migration Amendment Regulations 1998 (No. 9) (Cth). These regulations commenced on 1 December 1998. The 1998 amendments did not materially affect reg 5.03.

Chronology

12. On 31 July 1997, the applicant lodged an application for review of the delegate's decision (which had been made on 14 July 1997). The application identified the applicant's home address. This address was different from that which had been recorded in the applicant's original application for a protection visa. The application to the RRT also recorded the applicant's address for service as follows:

"c/- Leitch Hasson & Dent, Solicitors,

Level 12, 162 Goulburn Street,

Sydney, NSW 2000."

The applicant stated in the application that he would submit a "declaration along with other relevant documents... as soon as possible".

13. On 7 August 1997, the RRT acknowledged receipt of the application. The letter of acknowledgment included the following:

"When we receive the Department's documents, the Tribunal will look at them along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour immediately. This is known as `review on the papers'.

If the initial `review on the papers' does not result in a decision in your favour, you will be offered an opportunity to attend a hearing to give oral evidence to the Tribunal. Some hearings are conducted by video or telephone conference."

14. Thereafter nothing appears to have happened for nearly eighteen months. Certainly, no evidence has been adduced to explain a long period of apparent inertia on the part of the applicant (who had stated that he would submit documents as soon as possible) and, more particularly, on the part of the RRT.

15. In early February 1999, the RRT sent by post what purported to be a "NOTICE UNDER SECTION 426 OF THE MIGRATION ACT 1958" to the applicant at his address for service (that is, care of his solicitors at the address on the application for review). The notice was dated 3 February 1999, but there is no evidence as to the date it was posted. However, I infer that it was posted within a few days after the date it bears and that the likelihood is that it was received by the solicitors on or about 10 February 1999.

16. The text of the notice was as follows:

"The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now entitled to come to a hearing of the Tribunal to give oral evidence in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person.

You now need to tell the Tribunal

whether or not you want to come to the Tribunal to give oral evidence; and

whether or not you want to ask the Tribunal to obtain evidence from other people.

PLEASE COMPLETE THE ENCLOSED `RESPONSE TO HEARING OFFER' FORM AND RETURN IT TO THE TRIBUNAL BY 24 February 1999.

If you want the Tribunal to take oral evidence from another person or persons, please complete the `witness' details on the enclosed form. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name.

If you have any new documents or written arguments that you would like the Tribunal to consider, you should send them to the Tribunal with the completed form. Any documents you send must be in English, or must be translated into English by an accredited translator.

If you tell us that you want to give oral evidence, we will write to you shortly and advise you of your hearing date.

...

IF YOU DO NOT RESPOND BY 24 February 1999 WE WILL ASSUME THAT YOU DO NOT WANT TO COME TO A HEARING AND THE TRIBUNAL MAY MAKE A DECISION ON YOUR CASE WITHOUT FURTHER NOTICE."

(Emphasis in original).

Except for the date of 24 February 1999 and the last boxed paragraph, this notice appears to have been identical to the notice considered by Hely J in Uddin v Minister for Immigration and Multicultural Affairs [1999] FCA 1041 (see Appendix to the judgment).

17. By 19 February 1999, the RRT had received no reply to the notice. On that day, the RRT member telephoned the solicitors to whom it had been sent and spoke to a person who would not give his name. According to the RRT member's note of the conversation, that person said that the firm,

"still acted but actually we are having difficulty locating him at the address we have for him. [He] has moved [and] we don't know where he is at the moment."

The same person indicated that he would try to contact the applicant. The RRT member advised that the applicant had until 24 February 1999 and on that day he (the member) would be signing a decision. The person then said that he would "send the fax straight away".

18. The RRT received no further communication from the applicant or his solicitors. On 26 February 1999, two days after the deadline specified in the notice, the RRT made its decision. The reasons for decision were sent to the applicant, care of the solicitors' address, under cover of a letter dated 1 March 1999.

19. The application for review was filed on 29 March 1999. The applicant said that he was assisted by a friend in preparing the application and that it was typed at his solicitors' office. The application stated that the decision of the RRT "was notified on 1 March 1999", and the applicant acknowledged that he had been told by his solicitors of the decision shortly after it had been made.

The RRT's Reasons

20. In its consideration of whether it had complied with the requirements of ss 425 and 426 of the Migration Act, the RRT said this:

"On 3 February 1999 the Tribunal wrote to the applicant advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone. The applicant was advised that he was entitled to come to a hearing of the Tribunal to give oral evidence in support of his claims and was asked to tell the Tribunal within 21 days whether or not he wished to do so. The applicant was advised that if he did not contact the Tribunal within that 21 day period, it would be assumed that he did not wish to come to a hearing and that a decision could then be made without further notice. The letter was sent to the applicant at the nominated address in accordance with regulations. The Tribunal notes that the residential address supplied by the applicant is no longer used by him. The Tribunal contacted the applicant's adviser on 19 February 1999 and was advised that the firm still acted for the applicant `but actually we are having difficulty locating him as the address we have, he has moved and we don't know where he is at the moment'. The Tribunal advised that a response was required by 24 February 1999. As of the date of this decision no response has been received. In these circumstances I am satisfied that the Tribunal has discharged its obligation to provide the applicant with the opportunity to give oral evidence before it and that the applicant has effectively declined that opportunity. This matter has therefore been determined on the evidence before the Tribunal."

21. The RRT went on to consider and reject the applicant's claim that he had a well-founded fear of persecution in Bangladesh. The RRT made it clear that its decision was influenced by the fact that the applicant had declined to give the RRT the opportunity to explore with him the accuracy of his claims.

The Applicant's Evidence

22. In his cross-examination, the applicant acknowledged that his solicitors had told him at some stage that they had received the RRT's notice of 3 February 1999. Nonetheless, he maintained that they did not tell him of the contents of the notice until at or after the time he was informed by his solicitors that the RRT had ruled against him. Nor had he received a copy of the notice or known of the deadline.

23. As Mr Smith pointed out, the applicant's evidence, on the face of it, is somewhat surprising. The applicant admitted that his address and telephone number had not changed between mid-1997 and the first half of 1999. It therefore should not have been difficult for his solicitors to contact him at his telephone number or his residential address, notwithstanding that eighteen months had elapsed since their last communication with him.

24. For these reasons, I have approached the applicant's evidence with some caution. Even so, I formed the impression that, although he gave his evidence somewhat hesitantly (partly because of certain difficulties in translation), he was endeavouring to tell the truth. It is to be borne in mind that there is no evidence directly contradicting his account and that his solicitors do not seem to have sent any correspondence directed to him at his correct residential address. Moreover, his account was corroborated in certain respects by the record of the conversation between the RRT member and the representative of the applicant's solicitors on 19 February 1999. That record appeared in the RRT's file and was part of the bundle of documents prepared by the Minister for the purposes of this hearing.

25. I appreciate that the note of that conversation has some curious features, for example the suggestion that the applicant could be contacted by fax (he denied ever having a fax machine). But the reference in the conversation to the firm having difficulty locating the applicant at the address they had was consistent with his evidence that the solicitors had told him that they had attempted unsuccessfully to contact him at the address recorded in his original application for a protection visa. Further, if the solicitors had told the applicant of the RRT's notice, it is difficult to understand why the person speaking to the RRT member would not have said so.

26. Mr Smith correctly pointed out that, even if I were to find that the applicant had not been told of the RRT's notice by 19 February 1999, he still may have been informed of it prior to the RRT's deadline of 24 February 1999. Mr Smith also correctly pointed out that there is some reason to consider that the solicitors, having been contacted by the RRT, might have made particular efforts to contact the applicant. Certainly they succeeded in doing so on or shortly after 1 March 1999, although the evidence is not entirely clear as to how this came about. While I have again approached the applicant's evidence with some caution, I accept his evidence that he did not know of the contents of the RRT's notice until the time he was informed of the RRT's decision made "on the papers".

27. I should record that, in making this finding, I have not had the benefit of evidence from the firm of solicitors, so that the finding should not be taken as critical of them. I should also note that Mr Smith did not suggest that the absence of evidence from the solicitors should be counted against the applicant, on the principle of Jones v Dunkel (1959) 101 CLR 298. I think this was a proper approach, having regard to the fact that the applicant was unrepresented and had not been warned in advance of the hearing of the possible consequences of not obtaining such evidence.

Reasoning

Section 426

28. A convenient starting point for a consideration of the possible effect of s 426 of the Migration Act is Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 161 ALR 612 (FC). In that case, the RRT sent the appellant, who was in immigration detention, a letter dated 15 May 1998 advising her that a hearing had been scheduled for 21 May 1998, only six days later. The letter stated that she was to complete the attached form and return it within fourteen days. It was common ground that the appellant never received the letter.

29. Counsel for the Minister in Sook Rye Son conceded that the RRT's letter did not comply with s 426(1)(b) of the Migration Act (that is, the obligation to notify the appellant of the effect of s 426(2)). The concession was made on the footing that, even if (as the Minister contended) reg 5.03 of the Migration Regulations deemed the letter to have been received by the applicant seven days after its date, there were not seven days between the date of the letter and the date of the scheduled hearing (see at 623). Thus there was insufficient time to allow the applicant the seven day opportunity contemplated by s 426(2) for her to nominate witnesses from whom she asked the RRT to obtain evidence.

30. The appellant in Sook Rye Son relied on the failure to comply with s 426(1)(b) as a breach of required procedures and as a ground of review under s 476(1)(a) of the Migration Act. The Minister responded by pointing out that there was no evidence that the appellant wished to call or rely on other witnesses. Moore J, with whom Burchett J agreed on this issue, pointed out that, in striking the balance between speedy disposition of an application for review and affording applicants a fair opportunity to be heard, Parliament had expressly required that notice of a particular matter must be given to an applicant (at 623). His Honour held that, even if the letter had been received by the appellant, it could not have satisfied s 426(1)(b), since it did not inform her, in terms, that the written notice concerning witnesses had to be given within seven days. The letter had erroneously identified fourteen days as the time within which the appellant had to give notice and, if received, would have misled her (at 624). The failure to comply with s 426(1)(b) provided a ground of review under s 476(1)(a) of the Migration Act and therefore warranted setting aside the RRT's decision.

31. The facts of Sook Rye Son were rather special. As Moore J held, even if the letter had been received by the applicant on the date it was sent, there was simply insufficient time for the appellant to take advantage of the seven day period contemplated by s 426(2) of the Migration Act. Had the RRT's letter been sent well in advance of the proposed hearing date, Moore J would have had to decide whether the RRT's failure to specify correctly the effect of s 426(2) would still have justified setting aside the RRT's decision. In that situation, the recipient of the letter might have had a period longer than seven days within which to give notice to the RRT that he or she wished evidence to be obtained from named witnesses. It would be a somewhat surprising result if an applicant who has in fact been afforded a period longer than the seven days stipulated in s 426(2) of the Migration Act can attack an adverse RRT decision because the notice sent by the RRT did not set out precisely the effect of s 426(2). In other words, it may be necessary for an applicant to show some prejudice by reason of any non-compliance with s 426(1)(b) before an adverse decision made by the RRT is liable to be set aside on the ground of that non-compliance.

32 Be that as it may, the facts of the present case differ from Sook Rye Son in two respects. First, in the present case the notice of 3 February 1999 was prepared three weeks before the RRT's "cut-off" date of 24 February. Thus, if reg 5.03 had the effect of deeming the applicant to have received the notice seven days after 3 February 1999 (that is, on 10 February 1999), the applicant (in theory at least) still had fourteen days in which to give the notice contemplated by s 426(2) of the Migration Act. Secondly, the RRT's notice was in fact sent to the applicant's solicitors at his address for service and was actually received by the solicitors on or about 10 February 1999.

33. The first difference would not necessarily produce a different result in the present case from that reached in Sook Rye Son. If s 426(1), on its proper construction, requires actual notification to an applicant of the matters specified in that sub-section, the mere fact that the applicant is deemed by reg 5.03 to have received the notice of 3 February 1999 would not mean that he had been actually notified of its contents.

34. Burchett J in Sook Rye Son, the only member of the Court to consider the issue, held that s 426(1) does require actual notification. His Honour, after considering a number of conflicting decisions, expressed the view that the "deemed receipt" provisions of reg 5.03 do not apply to s 426(1) of the Migration Act. His Honour considered that the words "must notify the applicant" in s 426(1) are mandatory and require actual communication. Since reg 5.03 was expressed to be "subject to the Act", it was not intended to override the mandatory requirements of s 426(1). In any event, if reg 5.03 were so intended, it was outside the regulation-making power conferred by s 504(3) of the Migration Act, since s 504(3)

"does not authorise a regulation which would have the effect of converting the statutory obligation in s 426 to notify of certain facts into an obligation to be satisfied by the service of a document, and then deeming the service (and notification) to have occurred at a time when it had not occurred.": Sook Rye Son, at p. 618.

His Honour held that, since the appellant in Sook Rye Son had never given an address for service and since the RRT's letters had never been received by her, she had never been notified in the manner required by s 426(1). Burchett J's reasoning has recently been followed by Hely J in Uddin v Minister.

35. The second difference between the facts of the present case and those of Sook Rye Son may be more significant. Regulation 4.41 provides that if a document is to be given to or served on a person for the purposes of a review by the RRT, and no other provision is made for service, the document may be given or served by posting it to the address for service. The "absurdity" that Burchett J detected if reg 5.03 were to apply to s 426(1) is by no means present if the RRT serves a document at the very address for service provided by the applicant. It is true that reg 4.41 does not expressly refer to a document or communication which must be "notified" (as distinct from "given to" or "served"). Nonetheless, it is plausible that reg 4.41 is intended to have the effect that a document which in fact reaches an applicant's address for service is to be taken as having been notified to the applicant for the purposes of s 426(1). Unlike reg 5.03 as it stood at the relevant time, reg 4.41 is not expressed to be "subject to the Act". Nor is there any obvious incongruity in regarding service of a document at an applicant's address for service as making a statutory requirement to "notify" an applicant of the contents of the document.

36. As I shall explain, I think that the RRT failed to give the applicant "an opportunity to appear to give evidence" as required by s 425(1)(a) of the Migration Act. It is therefore not necessary for me to resolve the difficult issues of construction of s 426(1), none of which was or could have been fully argued in the present case. In these circumstances, I prefer not to express a final view on the possible application of s 426(1) to this case.

Section 425

37. Section 425(1)(a) has been described as a "central feature of a fair system of administrative merits review": Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193 (FC), at [31], per Wilcox and Hill JJ. In Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (Lindgren J, 6 May 1997, unreported), Lindgren J said that s 425(1)(a) required that an applicant be given a "genuine" opportunity to appear before the RRT to give evidence. Later cases have construed s 425(1)(a) as implicitly requiring the RRT to provide a reasonable opportunity for an applicant to appear to give evidence: Budiyal v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 166 (Tamberlin J), at 172; Capitly, at [31]-[32]; Sook Rye Son, at 624-625. These authorities make it clear that contravention of the statutory requirement constitutes a ground of review under s 476(1)(a) of the Migration Act.

38. The operation of s 425(1)(a) is illustrated by the facts of Budiyal. There the applicant applied on 14 January 1997 for review of a decision denying him a protection visa. The RRT sent a letter dated 8 September 1997 to the applicant's last notified address, advising him that if it did not hear from him within fourteen days from the date of the letter (that is, by 22 September 1997), it might make a decision on evidence already submitted. The letter further advised that a hearing date had been arranged for 15 October 1997. The applicant did not learn of the letter until after the deadline of 22 September 1997. The RRT, not having heard from the applicant, made a decision "on the papers" on 29 September 1997, affirming the delegate's decision not to grant him a protection visa.

39. Tamberlin J proceeded on the basis that the effect of regs 4.41 and 5.03 was that the letter was deemed to have been received by the applicant by 15 September 1997. (This portion of the reasoning is inconsistent with the approach of Burchett J in Sook Rye Son, but the point may be ignored for present purposes.) His Honour considered that the period of seven days between deemed receipt of the letter and the expiry of the "peremptory deadline" did not afford a reasonable opportunity to the applicant to appear and give evidence. Tamberlin J accepted that the applicant was not required by the terms of the letter actually to prepare for a hearing within the seven day period. Even so, he was required to decide whether to proceed with the hearing date and to identify witnesses from whom the RRT should be asked to obtain evidence. The applicant had to make and implement this decision in the context of the RRT having determined that it was not prepared to decide in his favour on the material available to it. Moreover, the letter itself had some confusing features. In these circumstances, the letter called for careful consideration and possibly advice by lawyers. Accordingly, his Honour held that a period of seven days for the applicant to respond, failing which he would lose his statutory entitlement to a hearing, was not reasonable.

40. The operation of s 425(1)(a) is further illustrated in the decision of the Full Court in Capitly. In Capitly, the applicant was sick and unable to attend the scheduled RRT hearing. The RRT refused to grant an adjournment. The Full Court held that the applicant had not been afforded the opportunity required by s 425(1)(a), even though he had received timely notification of the hearing. Wilcox and Hill JJ said this (at [34]-[35]):

"It is no doubt true that in the context of the making of a gift of property, a gift once made is complete and cannot be rescinded. But the meaning of any word such as `give' must be determined in accordance with its context. In the present context an opportunity to give evidence is not given once and for all by the notification to an applicant of a hearing date in the future. The opportunity must be a continuing opportunity and take account of the circumstances which from time to time exist, up until the opportunity is either availed of or not. For example, if an applicant who had received a letter such as that sent to Mr Capitly on 8 July 1997 had been severely injured in a car accident so that he could not attend the hearing on the day on which it was scheduled, he could hardly have then relevantly been given an opportunity to appear before the Tribunal to give evidence. That opportunity is one which must exist throughout the period until review, including the date on which it occurs.

In our view an applicant who is sick and cannot attend a hearing is not relevantly afforded an opportunity to appear to give evidence where the Tribunal refuses to grant an adjournment." (Emphasis added).

41. In the present case, eighteen months had gone by between the RRT's acknowledgment of receipt of the application for review and the date of the notice given by it under s 426(1) of the Migration Act. The notice, dated 3 February 1999, was sent to the applicant's solicitors at his address for service and (as I have found) was probably received by the solicitors on or about 10 February 1999. Therefore, assuming the applicant learned of the notice as soon as it was received by the solicitors, he had fourteen days or thereabouts before expiry of the deadline of 24 February 1999.

42. In view of the lapse of eighteen months between the RRT's acknowledgment of the application for review and its sending the notice, the RRT had good reason to be concerned as to whether the solicitors would in fact contact the applicant in sufficient time for him to make and communicate the decision required by the notice. So far as the RRT was concerned, the applicant might, for example, have changed address (although, as it happened, he had not changed address since mid-1997, shortly after the application for review was lodged). He might have gone away for a short period without notifying his solicitors. The person handling the file at the solicitors' office might have left or been absent or there might have been some other delay in processing the RRT's notice. Doubtless it was for these reasons that the RRT member, correctly, thought it prudent and sensible to make an inquiry directly to the solicitors on 19 February 1999.

43. From the perspective of the RRT member, the conversation of 19 February 1999 was less than satisfactory. The person to whom the member spoke refused to give his name and the information provided was somewhat vague. Nonetheless, the RRT member must have inferred from what was said in the conversation that the applicant had not been informed of the impending deadline. Certainly, nothing said in the conversation could have given the RRT member any reason to think that the applicant had been made aware of the terms of the RRT's notice or of the fact that, if the RRT's deadline were not met, he would lose his statutory entitlement to a hearing. It is true that, on the basis of what the RRT member was told, he could reasonably have concluded that the applicant's solicitors would attempt to contact the applicant swiftly. Even so, there could have been no guarantee that the solicitor's efforts would be successful, particularly as the RRT member was told that the solicitors were having difficulty contacting the applicant. In any event, even if the solicitors did succeed in contacting the applicant, he would have had, at most, five days in which to make the decisions required by the notice and to inform the RRT if he wanted witnesses to give evidence at the hearing.

44. In my view, once the RRT member became aware on 19 February 1999 that it was very likely that the applicant had not been told of the notice, it was not reasonable for him to insist on implementation of the deadline of 24 February 1999. As I have said, the RRT member had reason to think that the period of fourteen days effectively allowed by the notice served on the applicant's solicitors might not have been enough to give the applicant a genuine opportunity to ensure that he would receive a hearing. The conversation of 19 February 1999 must have confirmed to the RRT member that the applicant, through no fault of his own, had not in fact had a genuine opportunity to comply with the terms of the notice. The RRT member could not safely assume that the applicant would in fact receive the notice immediately after the conversation and, even if he did, there may still not have been enough time for him to have had a reasonable opportunity to make the necessary response. As events turned out, the applicant only found out about the terms of the notice after the RRT's deadline had expired.

45. In my opinion, the applicant was not afforded a reasonable opportunity by the RRT to appear to give evidence. Once the RRT member was alerted to the strong likelihood that the applicant had not been informed of the notice, he could have readily arranged an extension of the deadline. This would have ensured that the solicitors had adequate time to contact the applicant (or to inform the RRT if they were unsuccessful in their efforts) and, if they were successful, given the applicant adequate time to provide a considered response to the RRT's notice. No suggestion was made on behalf of the Minister that a decision by the RRT was urgently required. After all, the RRT's notice was not sent to the applicant until eighteen months after it had received the application for review.

46. It is implicit in what I have said that, even if a document is deemed to have been received by an applicant by reason of the operation of regs 4.39 and 4.41, the deemed receipt does not determine whether the applicant has received the genuine opportunity to appear before the RRT required by s 425(1)(a). As Hely J observed in Uddin v Minister, at [30]:

"[e]ven if the Regulations are effective so as to provide for deemed receipt of a document, and even if deemed receipt of a document amounts to performance of the statutory obligation that [the] RRT `must notify', the s 425 duty is not necessarily performed or discharged by service, or deemed service of a document."

This analysis is consistent with the decision in Capitly, where timely service of a notice did not preclude a holding that s 425(1)(a) had not been complied with.

Conclusion

47. The applicant was not given the genuine opportunity to appear before the RRT to give evidence, as required by s 425(1)(a) of the Migration Act. The failure to comply with s 425(1)(a) constitutes a ground of review under s 476(1)(a). The RRT's decision should be set aside and the matter remitted to the RRT, differently constituted, for determination according to law. The Minister should pay the applicant's costs.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated: 13 August 1999

Counsel for the Applicant: Unrepresented

Counsel for the Respondent: Mr J Smith

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 6 August 1999

Date of Judgment: 13 August 1999