Case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597
Outcome: cited
the appellant contacted the Tribunal to advise that he had not received the letter informing him that a decision to waive the prescribed fee in his case had not been made, it was not open to the Tribunal to take the view that it had allowed a reasonable time and had completed the discharge of its function. The information provided by the appellant necessarily raised for the Tribunal the factual question whether the appellant had not received the letter of 25 September 2007. If this question had been determined in the appellant's favour, it would have raised for the Tribunal the question whether its decision that it had no jurisdiction to deal with the appellant's application for review was attended by jurisdictional error. If the Tribunal had proceeded to such a decision before the passage of a reasonable time, in the circumstances of the case, it would not have performed its statutory function of reviewing the decision of the Minister's delegate. It would have declined to exercise its jurisdiction in circumstances where the provisions of the Migration Act required it to exercise that jurisdiction. The making of a decision consequent upon jurisdictional error does not discharge the Tribunal's function. The Tribunal has the power, and the duty, to disregard its previous decision and to proceed to perform its statutory function. See Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597. In that case, a Tribunal exercising powers under the Migration Act had proceeded to make a decision on the footing that the applicant for review had not attended at the appointed time for a hearing, unaware of the fact that the applicant had communicated a request for an adjournment of that hearing. Upon discovering the error, that Tribunal had proceeded to make a second decision, after affording the applicant procedural fairness. The High Court held it had power to do so. In the present case, the Tribunal had power to consider whether a reasonable time had in fact elapsed after the deemed receipt of the letter of 25 September 2007 and therefore whether its decision declining jurisdiction had been made properly. It was wrong for the Tribunal, by means of its officer, to communicate to the appellant that the Tribunal had met its legal obligation, that the matter was now out of its hands, and that it could do nothing further to assist the appellant. Instead, the Tribunal should have offered to the appellant the opportunity to be heard on the factual question, whether he had received the letter of 25 September 2007. It is possible that the appellant may have been able to persuade the Tribunal to make a finding of fact in his favour on that question. The fact that the Tribunal did not have evidence of actual delivery of the registered mail article (such as a recipient's signature) is significant. The appellant informed me on the hearing of the appeal that the house in which he lived was a household of some 12 students. It is not difficult to see that, when the agent of Australia Post arrived to effect delivery, if the appellant had been not at home, a card recording the attempted delivery might have been left with another occupant of the house who had neglected to hand it on to the appellant. It is not for me (and it was not for the federal magistrate) to make this factual determination. It was a matter entirely for the Tribunal. If the appellant had succeeded in obtaining a finding of fact that he had not received the letter of 25 September 2007, the Tribunal would have been required to consider whether, in the light of that circumstance, the appellant had been afforded a reasonable time in which to pay the application fee. The appellant informed me in the course of the hearing of the appeal that he had been ready and able to pay the fee, if his application for a decision that the fee should not be paid were to be unsuccessful. It is likely that, in those circumstances, the Tribunal would have determined that a reasonable time had not elapsed, would have accepted the fee from the appellant, and would have proceeded to deal with his application for review of the decision of the Minister's delegate. Having regard to the subsequent history, in which the appellant has had to litigate this issue, it would still be open to the Tribunal to determine that a reasonable time has not elapsed, if it were to find in the appellant's favour on the question of fact about actual receipt of the letter. If the Tribunal found that a reasonable time had not elapsed, it might also have considered that its earlier decision that it had no jurisdiction because the application fee had not been paid within a reasonable time was subject to jurisdictional error. It amounted to wrongfully declining to perform the Tribunal's statutory function of reviewing the decision of the Minister's delegate, and therefore wrongfully declining to exercise jurisdiction. If the Tribunal reached such a decision, it would be open to it, and necessary, for it to ignore the previous decision and deal with the review of the decision of the Minister's delegate. For these reasons, the Tribunal wrongfully declined to investigate the appellant's assertion that he had not received the letter of 25 September 2007. The federal magistrate was in error in dismissing the appellant's application for judicial review. His Honour should have found that the Tribunal had not completed the discharge of its function and should have ordered the Tribunal, by means of a writ of mandamus, to proceed to do so. Conclusion The appeal must be allowed. The orders made by the federal magistrate on 7 August 2008 must be set aside. In place of those orders, an order should be made that a writ of mandamus issue, directed to the Tribunal, requiring it to hear and determine the appellant's application for review of the decision of the Minister's delegate according to law. It is unnecessary to order that a writ of certiorari issue, because it may be that the Tribunal, upon revisiting the matter, finds that its initial decision declining jurisdiction is the correct one, because it does not make the requisite finding of fact in favour of the appellant about the actual receipt of the letter dated 25 September 2007. In those circumstances, that decision will remain. If the Tribunal determines that a reasonable time has not passed, it will ignore the earlier decision and proceed to deal with the review, as long as the appellant pays the application fee. For the federal magistrate's order that the appellant pay the Minister's costs of the proceeding in the Federal Magistrates Court, there should be substituted an order that the Minister pay the appellant's costs of that proceeding. In addition, there should be an order that the Minister pay the appellant's costs of the appeal. I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 23 April 2009 The appellant appeared in person Counsel for the respondents: Mr M Felman Solicitor for the respondents: DLA Phillips Fox Date of Hearing: 28 November 2008 Date of Judgment: 23 April 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/392.html