6 The application for judicial review is made in reliance on Pt 8 of the Migration Act. Section 478 provides that such an application must be lodged with a Registry of the Court within twenty‑eight days of the applicant being notified of the decision of which review is sought and that the Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside that period.
7 Except in the case of certain applicants who are in immigration detention (the present applicant is not in immigration detention), a decision of the Tribunal, on a review, may be "given orally" or may be "handed down" (s 368B). If the Tribunal gives its decision orally, the applicant is taken to be notified of it on the day when it is made (s 368D(1)). If the Tribunal proposes to hand down its decision, it must invite the applicant (and the Secretary) to be present when the decision is handed down (s 368A). The decision may then be handed down whether or not either or both of the applicant and the Secretary are present (s 368B(3)). If a representative of the applicant is present, the applicant is taken to be present (s 368B(9)) and the applicant is taken to be notified of the decision on the day on which it is handed down (s 368C(1). Although the Migration Act does not say so expressly, it must be the case that, if the applicant is present in person when the decision is handed down, the applicant is taken to be notified of the decision at that time.
8 If the applicant is not present, personally or by a representative, when the decision is handed down, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under s 368(1) (a provision to which I shall return) (s 368B(6)). That obligation is satisfied if a copy is given to the applicant's representative (s 368C(2)). The copy must be given within fourteen days after the day on which the decision is handed down (s 368B(6)). The methods by which it may be sent or given are provided for in s 379A; the effect of that provision is that the applicant is taken to be notified when the statement is sent or given by one of the specified methods.
9 Section 368(1) provides:
"Where the Tribunal makes its decision on a review, the Tribunal must, … prepare a written statement that:
(a) sets out the decision of the Tribunal on the review;
(b) sets out the reasons for the decision;
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based."
10 Where an oral decision is given the Tribunal must give the applicant and the Secretary a copy of the statement prepared under s 368(1) within fourteen days after the decision is made (s 368D(1)); but, as I have already mentioned, the applicant is taken to be notified of the decision on the day on which the decision is made. Plainly enough, the legislation contemplates - though it does not expressly provide - that an oral decision is given where the Tribunal announces its decision at the conclusion of a hearing. Giving a decision orally must involve its communication at least to the applicant and must therefore, I think, require its announcement on an occasion when the applicant is present: and presence, no doubt, may include presence by a representative.
11 Before I turn to what happened in this case, I shall refer to one other component of the legislative scheme. Section 349 specifies the powers of the Tribunal on a review and, particularly, in subs (2), the decisions which it may make. That subsection provides:
"The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision."
12 The Minister contends that in this case the Tribunal gave an oral decision at the conclusion of a hearing of the application for review. The applicant contends that the Tribunal did not give an oral decision. It is common ground that if the Minister is right the application for judicial review was lodged outside the time permitted by s 478 and that the Court lacks jurisdiction to deal with it. Additionally, if the Tribunal did not give an oral decision, it certainly did not "hand down" a decision in the manner required by the Migration Act. Thus, if I were to come to the conclusion that the Tribunal did not give an oral decision, a question would arise whether the Tribunal had made, or "given", a decision at all or whether, perhaps, although a decision had been made, the applicant is yet to be notified of it. As will become clear when I examine the circumstances, the case demonstrates one thing very clearly: if the Tribunal intends to give an oral decision at a hearing, it is important that it make plain that that is what it is doing and that it state its decision (being one of those, of course, which the Migration Act authorises it to make) in unmistakable terms. It is equally desirable that the applicant be informed, then and there, of the existence of the right to seek judicial review and of the limited time within which it may be sought.
13 The Tribunal conducted a hearing of the applicant's application for review of the primary decision of the Minister's delegate on 25 August 1999. The applicant was present, as were a migration agent who acted for him, an interpreter and three other persons who were there to give evidence, including Mr Karan Singh and his wife, Mrs Kaur. The transcript of the hearing is in evidence. There was an extended discussion between the presiding member, the applicant and witnesses (through the interpreter) and the migration agent concerning the applicant's claims to meet the various criteria for the visa. The discussion turned to the question whether the applicant was a "special need relative" of Mr Karan Singh and particularly whether Mr Karan Singh had "a permanent or long‑term need for assistance because of … disability, prolonged illness or other serious circumstances" affecting him or a member of his family unit (particularly Mrs Kaur, who claimed to have serious and continuing back problems as a result of which she was unable fully to look after her children). After that discussion had continued for a time, the presiding member said:
"Yes, I know, but how does an ordinary Australian person cope with that situation? I am afraid that I have to agree with the primary decision. I really do not feel - you might put this to the applicant."
14 The applicant (or the migration agent) asked for more time to submit further medical evidence. After expressing some scepticism about whether any purpose would be served by an adjournment, the presiding member said:
"Yes, one week and that is it and it is until next Wednesday which is the 1st of 9th and that is it. It does mean that somebody has to come back for the handing down."
15 Further discussion ensued in which the migration agent sought a longer adjournment. The presiding member expressed reluctance to extend the adjournment, having regard to the length of time which had already been available to the applicant to prepare his case. The following exchange then occurred:
"MEMBER: If we make it a fortnight, it will be the 8th of the 9th.
MIGRATION AGENT: May we request a letter from the Tribunal, ma'am, because the HSA will not give an urgent assessment unless there is a proper letter from the authorities.
MEMBER: Actually, look, with the greatest of respect, I think before I grant this adjournment, I am going to ask you what you hope to achieve by further delay. I cannot see how you are ever going to succeed. I will ask the solicitor [sic]. He does not have a right to speak, but in this case I am asking him because I am actually reluctant to give the adjournment. Would you please, before I grant the adjournment, explain to me how you are likely to satisfy the Tribunal that he in fact qualifies as a special need relative. Firstly that Mrs Kaur has got this long term need for assistance, and secondly that there is nothing else in the Australian community that can care for her."
Discussion followed about that, after which the presiding member said:
"Okay. Well, I have made my decision and I have decided against the adjournment. I do not believe that there is this long term need for assistance because of Mrs Kaur's disability and I am not giving an adjournment."
There was then a further brief exchange about the plight of Mr Karan Singh's family should the applicant not be allowed to remain in Australia. That exchange was brought to an end by the following statement of the presiding member:
"I now will declare the matter closed and I have made my decision and my decision is she [sic] does not qualify as a special need relative."
16 The hearing then concluded.
17 The Tribunal prepared a written statement as required by s 368. The statement said - mistakenly - that the date of the decision was 24 August 1999 and that it had been delivered on that date. In fact, the hearing took place on 25 August. The letter to the applicant enclosing the statement was dated 3 September. It described its enclosure as "a copy of the Tribunal's decision on your application for review". It informed the applicant that he might have rights of appeal and suggested that he seek advice. It concluded:
"There are strict requirements attached to appeal rights. For example, an appeal to the Federal Court under Part 8 must be lodged within 28 days of the notification of a decision. If you intend to seek advice about your appeal rights or to exercise any appeal right you should ensure that you do so as to be within any time limit."
18 That was not, perhaps, as clear as it might have been. The applicant might well be excused for thinking that the "notification", which marked the commencement of the period within which he had the right to seek judicial review, happened when he received the letter, not either when the presiding member had announced her conclusion or the letter had been despatched.
19 Two other documents on the Tribunal's file were referred to in argument on this aspect of the case. The first of these is described as a hearing record which appears to comprise a summary of what occurred during the hearing with cross references to the "counter" on the tape recorder. That document records the refusal of the adjournment and part of the ensuing discussion but not the presiding member's concluding statement. Secondly, there is a document called a "Finalisation Summary". It records, among other things, the hearing date (25 August 1999), the "IRT decision date" (3 September 1999) and the date of notification of that decision (3 September 1999). That reveals at least a degree of error or confusion. But I do not think that either of those two documents assists in answering the question whether, when she made her concluding statement, the presiding member gave an oral decision on the application before her.
20 The solicitor for the applicant suggested, relying on a dictionary definition, that what the presiding member said did not amount to a decision because a decision is, usually at least, a reasoned determination in the sense that it will be accompanied, or preceded, by the decision‑maker's reasons. In the statutory context, however, that is not a requirement. The Migration Act in terms contemplates that, if an oral decision is given, a statement of (among other things) the reasons will later be prepared and given to the applicant. The question is whether what the presiding member said amounted to a statement of a decision to affirm the decision under review (a decision authorised by s 349(2)(a) of the Migration Act and the decision recorded in the s 369 statement) or something falling short of that.
21 The applicant's solicitor submitted that what the presiding member said should be taken, in context, as an expression of the view which she was then inclined to take rather than a final determination. Secondly, he submitted that the statement was not a final decision on the application, of a kind authorised by the Migration Act, but simply "a step taken in the course of reasoning on the way to the making of the ultimate decision" (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336 per Mason CJ).
22 To the extent that the course of the hearing, particularly the latter part of it, was apt to give rise to confusion in the mind of the applicant, and possibly his adviser, I have some sympathy with the first submission. Nevertheless, I do not accept it. The sequence of events was that the presiding member formed a view adverse to the application ("I am afraid that I have to agree with the primary decision"). She put that view to the applicant. It prompted a request for an adjournment. An adjournment for one week was granted. A longer adjournment was sought; and the presiding member seemed inclined to grant it ("If we make it a fortnight it will be the 8th of the 9th"). She then made it clear that she had second thoughts ("Actually, look, with the greatest of respect, I think before I grant this adjournment, I am going to ask you what you hope to achieve by further delay"). Attempts were made to provide an explanation which the presiding member found unconvincing. Having reconsidered the matter, she declined the request for an adjournment ("Well, I have made my decision and I have decided against the adjournment. I do not believe that there is this long term need for assistance … and I am not giving an adjournment"). The ensuing brief discussion did not lead to any change of mind. The presiding member's concluding statement had all the hallmarks of finality and no hint of tentativeness ("I will now declare the matter closed and I have made my decision and my decision is she [sic] does not qualify as a special need relative").
23 The second submission raises questions which, in my view, are much more finely balanced. The presiding member did not state, in terms, the decision authorised by s 349(2) to which her conclusion led. But the visa for which the applicant had applied must be refused unless the criteria were met. If the applicant was not a special need relative of Mr Karan Singh, then the criteria were not met. That being so, there could be only one result of the application for review, that is that the primary decision was affirmed. The hearing proceeded on the footing that whether the applicant fell within the defined term "special need relative" was the only substantial question to be decided. The questions, answers and discussion during the hearing, as well as the material submitted on behalf of the applicant, were all directed to the various elements of that definition. In making the pronouncement which she did, the presiding member plainly intended to make a final determination of the one substantive issue before her, the determination of which would dictate the result of the review. In the circumstances, to decide that "she" (and I do not think that the verbal slip or, it may be, mistranscription matters) was not a special need relative was to decide that the primary decision was to be affirmed. One necessarily followed from the other. There is much to be said for the submission of counsel for the Minister, that the giving of an oral decision on a review by the Tribunal does not require literal adherence to a verbal formula, so that if the Tribunal at the conclusion of a hearing makes a pronouncement which, though not in the precise terms of any of the paragraphs of s 349(2), conveys the substance of a decision authorised by that provision, then the Tribunal has given (and notified) a decision on the review.
24 There is, on the other hand, force in the contention that, in the context of proceedings with very significant consequences for persons who may well not be particularly proficient in English, and who frequently will not be assisted by a person with a precise understanding of the provisions of the Migration Act, a construction should not readily be adopted to the effect that near enough is good enough. Precise verbal compliance with the terms of s 349(2) may not be required. For example, the announcement of a decision to uphold, rather than "affirm", a primary decision would plainly be sufficient; equally, if the Tribunal intended to make an order contemplated by s 349(2)(d), no doubt it would be sufficient to announce that a specified decision was substituted for a primary decision even if the Tribunal did not in terms say that the primary decision was "set aside". But, by analogy with proceedings in Court, to make an ultimate finding of fact which will inevitably result in particular final orders is not the same thing as to make final orders disposing of the proceedings. Similarly, to find that an applicant does not meet the criteria for a visa is not the same thing as to make the operative decision that the visa be refused. One may inevitably lead to the other; but they are distinct steps and the process is not complete until the second of them has been taken.
25 In the end, after some hesitation and with some regret, I have come to the conclusion that the submission on behalf of the Minister is correct. The analogy between proceedings in Court and administrative review proceedings before a Tribunal is, I think, imperfect. The correct approach, I think, is to ask whether the Tribunal has made clear the substance of what it intended. The presiding member commenced with a strong, though not final, statement of agreement with the primary decision-maker. After further discussions she made it clear that she had come to a firm view. The matter was "closed". She had made "my decision", plainly intended as a decision on the review, not merely as a finding of fact on the way to such a decision. The decision was that "she does not qualify as a special need relative". In context it would have added nothing of substance to append to that pronouncement, "that is to say, the application fails" or "that is to say, the primary decision is affirmed". It would, I think, have been better had the Tribunal used the statutory language. It would certainly have been desirable to tell the applicant that a decision had been made and that the limited time within which he had the right to lodge an application for judicial review had commenced (there is no evidence of whether anything of that nature was said to him outside the hearing). But in my view the Tribunal gave an oral decision on the review; it follows that the applicant, being present, was notified of the decision at that time; it follows that the application for judicial review was lodged out of time and that it must be dismissed for want of jurisdiction.
26 If I were wrong in my view that the Tribunal gave an oral decision on the review, there would nevertheless be a question whether the Court could, at this stage, entertain an application for judicial review. Although the Tribunal (on that hypothesis) did not give an oral decision, apparently it did, nevertheless, proceed to "make" a decision: it prepared a written statement setting out the decision and its reasons for making it, something that it is required to do where it "makes" a decision. But if a decision is not given orally, it must be "handed down"; and that has not been done. And the date of a decision (s 368B(4)) is the date on which it is handed down. Perhaps - the legislation in this respect is not clear - there is no operative decision where it has not been handed down, as required, and consequently does not yet have a date. Nor, apparently, has the applicant been notified of a decision in the manner required by the Migration Act: notification takes place at, or following, handing down; and the time for lodgement of an application for judicial review runs from "the applicant being notified of the decision" (s 478).
27 There is, at best, an ambiguity about a matter which is of great importance to an applicant's rights. Its presence emphasises the importance of careful compliance by the Tribunal with the provisions of the legislation as to the ways in which it is to make known its decisions. The terms of the notification provisions prompt a further comment. As I have mentioned, s 368D requires the Tribunal, where it has given an oral decision, to "give" the applicant and the Secretary a copy of the s 368 statement within fourteen days after the decision is made. But it is not immediately clear how that copy is to be "given". It is not one of the documents referred to in s 379A(3) (particularly - see s 379A(3)(c) - it is not a statement given under s 368B(6)) and therefore taken to be given when despatched by one of the methods specified in s 379A. It is possible - I have not made a detailed search and no argument was directed to this - that there is some other, more general, provision which would apply. It is clear at least (s 368D) that in the case of an oral decision time runs from the moment it is pronounced even though, at that stage, no statement of reasons will have been given. It is clear also that such a statement must be "given". It is less clear how that is to be done.