422A Reconstitution of Tribunal for efficient conduct of review
(1) The Principal Member may direct that:
(a) the member constituting the Tribunal for a particular review be removed; and
(b) another member constitute the Tribunal for the purposes of that review;
if the Principal Member thinks the reconstitution is in the interests of achieving the efficient conduct of the review in accordance with the objective set out in subsection 420(1).
(2) However, the Principal Member must not give such a direction unless:
(a) the Tribunal's decision on the review has not been recorded in writing or given orally; and
(b) the Principal Member has consulted:
(i) the member constituting the Tribunal; and
(ii) a Senior Member who is not the member constituting the Tribunal; and
(c) either:
(i) the Principal Member is satisfied that there is insufficient material before the Tribunal for the Tribunal to reach a decision on the review; or
(ii) a period equal to or longer than the period prescribed for the purposes of this subparagraph has elapsed since the Tribunal was constituted.
(3) If a direction under this section is given, the member constituting the Tribunal in accordance with the direction is to continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the member who previously constituted the Tribunal.
The effect of s 421 is set out above.
23 Section 420(1) directs the Tribunal, in carrying out its functions, to "pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick".
24 The Principal Member has power under s 420A from time to time to give a direction, not inconsistent with the Act or the regulations, as to the operations of the Tribunal and the conduct of reviews by the Tribunal. The current direction (Principal Member Direction 1/2008) was in evidence. Relevantly it is in the same terms as that applicable at the commencement of January 2008 and at the time of the applicant's review first having been made. It is headed "Caseload and Constitution Policy". Relevantly, it sets out priorities for the allocation of review applications and the means by which the initial direction to be given under s 421 by the Principal Member will be given for the constitution of the Tribunal. No particular point is made about any of those provisions. The Caseload and Constitution Policy has two sections relevant to the present proceeding, one headed "The constitution of the Tribunal", and another headed "The reconstitution of the Tribunal". In the latter section, reference is made to a member of the Tribunal becoming unavailable (s 422) or for the efficient conduct of the review (s 422A). There are parallel provisions relating to the Migration Review Tribunal: ss 355 and 355A. In the section headed "The constitution of the Tribunal", apart from the provisions dealing with the initial direction as to who is to constitute the Tribunal for the purposes of a particular review, cl 20 provides:
As a general rule, if a person has previously had a case reviewed by the Tribunal, any new case, or any case remitted for reconsideration, in which that person is an applicant will be constituted to a Member other than the Member who had previously constituted the Tribunal.
It is the applicant's contention that cl 20 of the direction is beyond power, because it is inconsistent with the Act.
25 There are two decisions touching upon the contention of the applicant where the Tribunal had been differently constituted following its decision being quashed and the review remitted to it. They were given almost at the same time, and they appear to be inconsistent.
26 The applicant relies upon the decision of Lindsay FM in SZLQK v Minister for Immigration and Citizenship [2008] FMCA 633 (SZLQK), delivered on 23 May 2008. His Honour there determined that the scheme of the Act required that s 421 dealt only with the initial constitution of the Tribunal, that reconstitution of the Tribunal could not be effected by using s 421 of the Act, and that reconstitution of the Tribunal could occur only if s 422 or s 422A was available in the particular circumstances: see at [14]-[15]. His Honour thought that, otherwise, there would be no need for either of those provisions: see at [23]-[24]. He specifically indicated that cl 19 of the Principal Member's Direction issued on 9 August 2007 headed "Caseload and Constitution Policy" (which is in the same terms as cl 20 of the current direction) indicated a misapprehension on the part of the Principal Member that a remittal for reconsideration had the effect of requiring the constitution of a wholly new review: see at [33]. His Honour concluded that, in the circumstances of that case, s 422 was not available as a mechanism to reconstitute the Tribunal by the Principal Member (at [43]), and that the only means by which that could be done would be under s 422A. The Principal Member had not made the reconstitution pursuant to that section. Hence, there was error on the part of the Principal Member in appointing a different member to constitute the Tribunal. Nevertheless, his Honour concluded that the error on the part of the Principal Member was not a jurisdictional error going to the validity of the decision of the Tribunal. It was a procedural error, and so the challenge did not succeed.
27 In NBMB v Minister for Immigration and Citizenship (2008) 100 ALD 118 (NBMB), delivered on 26 February 2008, Flick J reached a different conclusion. As it happened, his Honour's conclusion was not part of the ultimate reason for deciding the case. In the course of a challenge to a decision of the Tribunal, the applicant sought leave to amend the application to allege that the reconstitution of the Tribunal on the remittal of the review had been improper. His Honour refused leave to so amend the application, and in any event his Honour said that he would have resolved the point adversely to that applicant. In that case, as here, the Minister said that the reconstitution of the Tribunal following the quashing of its earlier decision was made under s 421 of the Act rather than s 422A of the Act (as contemplated by Lindsay FM in SZLQK). His Honour noted that the justice of the case, when a decision of the Tribunal has been set aside, is generally that the Tribunal be reconstituted by a different member: see also Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43; Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. In NBMB, at [39]-[41], Flick J decided that there was no reason to impose any constraint upon the power conferred by s 421(2) in that circumstance. As he pointed out, it is a power that can be exercised from time to time: Acts Interpretation Act 1901 (Cth), s 33(1). The discretion to exercise that power, his Honour said, is to be exercised in the light of all the circumstances, including the order of the Federal Magistrates Court quashing the initial decision and what is recognised as "justice being seen to be done". His Honour also adverted to the possibility that the unavailability of a member for the purposes of s 422 may not simply be where the term of appointment has expired, or the member has died or become unable to carry out his duties, or has resigned. Unavailability might also arise, his Honour speculated at [41], where an order is made quashing the decision of the Tribunal as originally constituted. Otherwise, a member may remain "available" even though "justice in general is better seen to be done" if that member did not further participate in any re-hearing.
28 It was the legislative intention, when review of decisions of delegates of the Minister by the Immigration Review Tribunal (and subsequently by the Migration Review Tribunal and the Refugee Review Tribunal) was first introduced, that there should be an independent merits review of the delegates' decisions. That change was introduced by the Migration Legislation Amendment Act 1989 (Cth). The structure then created speaks for itself. At the time, the Minister's Second Reading Speech referred to the new tier of review as "independent" and as a "statutorily based independent review body": Australia, Senate, Debates (1989) Vol S132, p 922. The first step was the establishment of what was then the Immigration Review Tribunal. It is not necessary to trace the legislative evolution of that body to the present position. The structure of an independent merits review process has been maintained. It is clear that the objectives, as now found in s 420(1), of a fair just and economical review and one that is independent have persisted.
29 In particular, as the independent review structure has been refined, those general objectives have been reinforced. Section 420(1) was first introduced as part of the new Division 3 of the Act by the Migration Reform Act 1992 (Cth), and at the same time ss 421 and 422 were introduced (then respectively ss 166C, 166CA and 166CB). Sections 420A and 422A were introduced by the Migration Legislation Amendment Act (No 1) 1998 (Cth).
30 In that context, ss 422 and 422A should be seen as enabling the Principal Member to replace an initially designated member of the Tribunal in certain circumstances where the primary objectives of review as specified in s 420(1) are not being met. The replacement power is a refined one. It is one which may be exercised in circumstances which would not be seen as interfering with the proper performance of the review process by the designated member. It is not necessary to paraphrase those circumstances. The refined nature of that replacement power is emphasised, where the replacement is made to achieve the efficient conduct of the review, by the conditions on its exercise specified in s 422A(2).
31 Those general observations do not directly resolve the particular issue now raised. It is whether, upon remittal of a review to the Tribunal after a decision of the Tribunal has been quashed, the Principal Member may reconstitute the Tribunal by a different member from the member whose decision has been quashed, and who first constituted the Tribunal. It is clear enough that, if the Principal Member wishes to reconstitute the Tribunal in the circumstances encompassed by ss 422 or 422A, the relevant power is found in those sections and not in s 421 itself. It is necessary to reach that conclusion to give those provisions utility.
32 However, it does not follow that s 421 should be read so that it excludes the reconstitution of the Tribunal by the Principal Member in circumstances such as the present. That power is apparently unlimited in its terms. It is limited by its context, first and obviously, so that it is not available to be exercised where the circumstances attract the potential application of ss 422 or 422A. It is also limited by its context so that it is not available to be exercised where its exercise would, or could reasonably, be seen as interfering with the independent function of the reviewing member appointed under s 421(1). It is not necessary to refer to all the circumstances where that might be the case. One example might be where the designated member, acting efficiently, is sought to be replaced by the Principal Member for no apparent reason whilst conducting the review; the suspicion could reasonably arise that the removal was directed to facilitating a different outcome to the review by the selection of a different member to conduct it.
33 The present circumstances expose no such circumstances. Indeed, taken alone, they could not suggest that the exercise of the power under s 421(1) to reconstitute the Tribunal by the appointment of Member Thomas to conduct the review was for an improper purpose. It is, as the initial appointment of Member Muling, an apparently entirely neutral exercise of that power. There is no reason to read s 421(1) in a way that would stop the exercise of that power in the circumstances.
34 There are good reasons that it should be available to be so exercised it, namely that the decision of Member Muling had been quashed for jurisdictional error. As Flick J said in NBMB at [39]-[40]:
The decision of the Tribunal as initially constituted had been set aside by the Federal Magistrates Court. Where such an order is made, "justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing": Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43. See also Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. The "usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed": Industry Research and Development Board v IMT Ltd [2001] FCA 85 at [40].
There is no reason to impose any constraint upon the power conferred by s 421(2). The decision of the initial tribunal having been set aside, the exercise of the power conferred by s 421(2) thereafter arose for consideration. It is a power that can be exercised from time to time: s 31 of the Acts Interpretation Act 1901 (Cth). The discretion to be exercised by the principal member - or his delegate - was a discretion to be exercised in light of all the circumstances, including the order of the Federal Magistrates Court and what is recognised as "justice being seen to be done." Section 421(2) confers a power of appointment upon the principal member - or his delegate: Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [40] per McHugh J. In the present proceedings, that power was exercised by a person with an appropriate delegation.
35 There may be reasons giving rise to jurisdictional error where the justice of the case clearly requires the appointment of another member of the Tribunal to conduct the review, such as jurisdictional error where the member of the Tribunal had formed an adverse view about the credit of the visa applicant or where the jurisdictional error is based upon a finding of bias in the member making the initial decision. Section 421 should be construed to accommodate such circumstances. The applicant's contention would not do so; nor would it allow the remitted review to be reconstituted by the Principal Member at all. Such an outcome is not one the legislature is likely to have intended.
36 Counsel for the applicant submitted that s 421 must be confined to the initial direction of the Principal Member because there is only one "review", and that so long as ss 422 and 422A are not available to change the designated member, the "review" must be conducted by the initially designated member. The consent order leading to the review being remitted to the Tribunal did not quash the review, but only the decision. Hence, it was argued, the review was ongoing and the direction appointing Member Muling to conduct it remained in force.
37 However, in my view, the word "review" in s 421 does not have such a limited meaning. The word "review" is not used in the Act consistently in so limited a way. It is used as a verb, to describe the obligation of the Tribunal to "review" certain decisions: s 414. Section 415 sets out the Powers of the Tribunal "for the purposes of the review". Not surprisingly, the Tribunal's processes are recognised as including an application for review, the receipt of documents from the Secretary relevant to the review: s 418; and more generally the process of review: s 420(2). Section 421 allows for the appointment of a member to conduct a particular review. Clearly that must occur after the review has commenced by the application, and may be made after the receipt of the relevant information under s 418. It is consistent with those various provisions that, at some point after a review is commenced by application a member will by s 421 be directed to constitute the Tribunal. That does not mean the Tribunal did not exist for the purposes of the particular review until that time, or that the review did not exist until that time. In that context, where (as here) the decision of the Tribunal as first constituted has been quashed and the Tribunal is directed "to determine the matter the subject of the decision according to law", there is no reason to regard the process of the review from at least the point of designating a member to conduct it as having commenced. That is, I consider that the remittal of the review to the Tribunal entitled the Principal Member to re-exercise the power under s 421 of directing a member of the Tribunal to conduct it.
38 The applicant submitted that s 33(1) of the Acts Interpretation Act 1901 (Cth) does not support the conclusion I have reached, although Flick J in NBMB in the passage set out above also referred to it. It relevantly provides that, where an Act confers a power, then that power may be exercised from time to time as the occasion arises, unless the contrary intention appears. The argument was that, by reason of ss 422 and 422A, a contrary intention did appear. I have rejected the contention that ss 422 and 422A cover all the circumstances in which the Tribunal may be reconstituted, as I consider they confine the general power in s 421 only in respect of the circumstances to which they relate. In other circumstances, or at least in circumstances such as the present, they do not limit the availability of s 421 to permit the reconstitution of the Tribunal. They do not reveal the contrary intention asserted on behalf of the applicant. Section 33(1) of the Acts Interpretation Act 1901 (Cth) therefore can, as it does, make clear that the power under s 421 may - where it is available to be used - be exercised from time to time.
39 In the light of that conclusion, I do not need to consider the alternative contention of the Minister that, in any event, s 422 applies as the circumstances enable the Tribunal to be reconstituted because the initial member is not, or is no longer "available" for the purpose of the review. That was a possibility adverted to by Flick J in NBMB at [41]. There are some circumstances where, in the interests of justice, the remitted review might clearly be conducted by the initially appointed member (an obvious example is where the member applied the law as expressed in a binding decision, but that decision was subsequently reversed on an appeal). Thus, it would not appear that the quashing of a decision of the initial member necessarily leads to that member then becoming no longer "available" to conduct the review. Consequently, if that alternative contention is correct, the concept of availability would be a somewhat amorphous one, perhaps depending on the nature and gravity of the jurisdictional error in the first decision. It is not clear that such an inquiry was intended when a decision of the Tribunal has been quashed for jurisdictional error.
40 I note the applicant's further argument in support of the alternative contention, based on s 422(1)(b) referring to the initial member of the Tribunal no longer being available for the purpose of the review "at the place" where the review is being conducted. It was argued that such an expression, directing attention to a geographical focus as one of the elements for the exercise of the power, also indicates that s 422 is not available in circumstances such as the present to reconstitute the Tribunal. It is not necessary to address that argument, in view of my conclusion above. I note that the "place where the review is being conducted" is not defined in the Act. Section 430A refers to the place at which a decision is to be handed down. A review may be conducted by a member sitting in one location or State, and the visa applicant being in another location or State; sometimes a legal representative or another migration agent, or an interpreter, is in yet another location. Sometimes, I assume, the hearing conducted under s 425 will occur away from the location or State in which the application for review was filed. I suspect that the reference to the "place where the review is being conducted" is not a necessary limiting factor upon when a member is no longer "available" to conduct that review. As I have said, it is not necessary to decide that question.
41 Finally, on this issue, I refer to the decision of the Full Court in SZEPZ v Minister for Immigration and Multicultural Affairs (2007) 159 FCR 291. I have given anxious thought to whether that decision, which is of course binding on me, dictates a different conclusion to the one I have reached. Where the Tribunal has been differently reconstituted following the quashing of its initial decision, that case decided that s 424A did not require the Tribunal as newly constituted to re-give particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. I do not think that decision dictates an opposite conclusion. Clearly, in the case of a Tribunal reconstituted under ss 422 or 422A, where the Tribunal's task is to "finish the review", that decision is apt. It may also be apt where the Tribunal has been reconstituted under s 421, where - at least in one sense - the process of review by its consideration of a member of the Tribunal recommences. In the latter circumstance, the activating fact to enliven s 424A must be the assessment of the information by the Tribunal as constituted. If, however, as appears to have been the case in that decision, the Tribunal as reconstituted formed the same view about certain information as the Tribunal as previously constituted, because (as the Full Court pointed out at [42]) the giving of the required notice may be given administratively, the notice given earlier would satisfy s 424A.