In each matter the Tribunal declines to reconsider its previous decisions.

Reconsideration of Decision - jurisdictional error - finality of decisions of the AAT -power of the tribunal once exercised is exhausted - appeal on questions of law to Federal Court of Australia - reconsideration of tribunal decisions for alleged jurisdictional error will be very rare - manifest error - administrative oversight or error

Refusal to adjust and reduce a debt - whether "beyond the person's control"

Administrative Appeals Tribunal Act 1975 (Cth): s 44

Health Insurance Act 1973 (Cth): s 19ABA

Higher Education Funding Act 1988 (Cth): s 106L(3)

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 2 ALD 1

Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55

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

Secretary, Department of Education, Training and Youth Affairs v Ellem [2000] FCA 695

Application has been made for reconsideration of two decisions of the Tribunal. These are unusual requests. In principle, decisions of the Tribunal are final, subject to appeal on questions of law to the Federal Court of Australia. However, in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 the High Court of Australia held that the Immigration Review Tribunal had jurisdiction to reconsider a decision made in breach of the rules of procedural fairness because such a decision involved jurisdictional error and was properly regarded, in law, as no decision at all. There being no decision the Tribunal was not precluded from considering the matter afresh. In both matters before me it is asserted that there is jurisdictional error. I am prepared, without examining the question, to assume that these claims will be made out. Nevertheless, I propose to decline to consider the applications. The Tribunal can, in the exercise of its discretion, decline to reconsider matters in which it is asserted that there is jurisdictional error. There are very good reasons of practice and policy why it should adopt this course except in the very clearest of cases. My detailed reasons follow.

On 29 September 2005 the Tribunal, constituted by Member Isenberg, found that it had no jurisdiction to hear an application by Thomas Edwards for review of a decision of the Department of Health and Ageing relating to himself. On 10 October 2005 the Tribunal, constituted by Senior Member Bell, affirmed a decision of the Department of Education, Science and Technology relating to Brent Michael which Mr Michael had applied to the Tribunal to review.

Member Isenberg found that the Tribunal had no jurisdiction because no statutory provision conferring jurisdiction on the Tribunal was relied upon and none could be discovered by her. One provision which had some oblique relevance was s 19ABA of the Health Insurance Act 1973 (Cth). However, there is no provision conferring rights of review on the Tribunal with respect to decisions under that section or associated sections.

The Administrative Appeals Tribunal was created by statute. It has no jurisdiction unless there is a legislative instrument conferring jurisdiction. There is none in Mr Edward's case. Accordingly, the Tribunal has no jurisdiction to consider the decision which Mr Edwards seeks to challenge.

Mr Edwards argues that the decision in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 2 ALD 1 provides the basis for the Tribunal's jurisdiction. That case is authority for the proposition that the Tribunal has jurisdiction to reconsider the purported revocation of a licence which could not be revoked but only because the purported revocation was an intended exercise of powers conferred by legislation which were subject to review (pp 8, 9). There are no statutory provisions conferring jurisdiction on the Tribunal with respect to any of the dealings between Mr Edwards and the Department. Accordingly, there cannot have been any intended exercise of powers which are subject to review. Member Isenberg's decision is plainly correct. Mr Edwards claims he has a grievance but the Tribunal has no power to address it. That could only be done by a court.

Senior Member Bell was considering an application for review of a decision refusing to adjust and reduce a Higher Education Contribution Scheme (HECS) debt. This required consideration of subs 106L(3) of the Higher Education Funding Act 1988 (Cth). The test in that section contained a number of parts linked by the conjunction "and". Senior Member Bell said that "the failure to meet just one" of the parts meant that the test was not satisfied. At the end of her decision she said this:

"22. It follows that, because Mr Michael's circumstances were not beyond his control, his circumstances are not special and so his debt may not be remitted."

However, in Secretary, Department of Education, Training and Youth Affairs v Ellem [2000] FCA 695, Lindgren J said, at para 34:

"34. The expression "beyond the person's control" occurs in subs 160L(3) which describes circumstances included within the notion of "special circumstances" referred to in para 160L(1)(b). But the circumstances described in subs 160L(3) do not exhaust the field covered by the "special circumstances" referred to in para 160L(1)(b). The special circumstances to which para 160L(1)(b) refers are circumstances additional to the conditions specified in paras 160(1)(a) (non-completion of course requirements) and (c) (application for remission within 12 months) which take the case out of the "non-special" category in which the HEC semester debt cannot reasonably be expected to be remitted. Those special circumstances would definitely include, but are not limited to, circumstances that the Secretary is satisfied meet all three criteria described in paras (a), (b) and (c) of subs 106L(3). Accordingly, there may be circumstances which are not "beyond the person's control" but which are nonetheless "special" for the purposes of para 106L(1)(b). The ultimate question is that posed by subs 106L(1) and, relevantly, para (b) of that subsection: is the Secretary (or the AAT) "satisfied that special circumstances applied to the person"."

It is arguable that Senior Member Bell's decision was not reached by applying the legislation as construed in the Federal Court of Australia. If this is right there will have been an error of law and the applicant would be likely to succeed in an appeal to the Federal Court of Australia. I must decide whether I should consider this question pursuant to the application made in reliance upon the Bhardwaj principle.

Nothing in the judgments of the High Court in Bhardwaj suggests any qualification to the principle that a tribunal cannot revisit its own decision; that the decision-making power is spent once it is exercised. Indeed this principle of functus officio is endorsed (Gleeson CJ at 603; Gaudron and Gummow JJ at 610). Most of the judges in Bhardwaj recognised the practical problems of allowing reargument of a failed case. Some potential limitations on the Bhardwaj principle have already appeared. For example, in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55, Gray J and I, with the broad agreement of Kenny J, said (at 68):

"In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute."

9.

Bhardwaj was a simple, and perhaps obvious, case. An administrative error resulted in the person constituting the Tribunal being unaware of an application for an adjournment. The matter proceeded without consideration of the application and in the absence of the applicant. When the error was discovered it is not surprising that the matter was relisted and considered afresh. These were the facts which the High Court was asked to consider. The Court did not address the question of when it is appropriate for a Tribunal to reconsider a matter.

There are problems of substance as well as practical problems in a tribunal reconsidering its own decision. The original decision contains its own assertion, express or implied, that it is given within jurisdiction. How can the same tribunal be subsequently reconstituted with power to determine that the first assertion is wrong? How are such applications to be dealt with in practice? A fresh application for review seems inappropriate because the argument is that the original application is on foot and has not been dealt with. On the face of the Tribunal's record, however, the application has been dealt with and the tribunal is functus officio. The practical problems are obvious. Does every application for reconsideration have to be heard? Should such an application be heard by the tribunal as originally constituted or by a differently constituted tribunal? In the latter case, is it appropriate for the tribunal to follow the earlier decision, in comity? Should every complaint made by a disappointed party be treated as an application for reconsideration under Bhardwaj?

11.

Bhardwaj itself was an example of the kinds of problems which can arise. The real issue in Bhardwaj was which of the two purported decisions of the Tribunal was the proper exercise of jurisdiction (see Hayne J at 647; compare at 642). If the first decision was within jurisdiction then that was its lawful decision. The second decision is the decision which was no decision at all. This indeed was the argument presented on behalf of the Minister for Immigration and Multicultural Affairs.

It is not competent for a Tribunal to make a binding, or any, ruling as to whether it has made an error of law. It is at least theoretically possible that the Federal Court or the High Court might have ruled in Bhardwaj that it was not a denial of natural justice to proceed with the first hearing because, for example, the adjournment application was not supported by evidence or was the latest of many similar applications. In that event, the second decision of the Immigration Review Tribunal would only have created needless doubt.

It follows that, except in the clearest case, the making of a second decision by a tribunal will only lead to uncertainty of result. This is, at the least, a sound reason for a tribunal to act with extreme caution before reconsidering a matter which has already been decided.

Only one justice in Bhardwaj addressed the question of when it might be appropriate for a tribunal to reconsider a decision. Hayne J said this (at 645):

"It is, therefore, not to the point to ask whether the Tribunal was wise to make its October decision without first having the comfort and certainty of a court order holding the September decision to have been not a lawful performance of the Tribunal's duties any more than it is to the point to ask about the efficiency of adopting the course that was followed in this matter."

It seems to me that because of the substantive and practical problems I have adverted to it will very rarely be "wise" for a tribunal to reconsider its own decisions.

Gleeson CJ characterised the error in Bhardwaj on four occasions as "administrative oversight", "administrative slip" or "administrative error" (at pp 602, 605(2) and 606). Kirby J, in dissent, used the phrase "administrative error" three times (at pp 627 and 630(2)). The justices were referring to the fact that the underlying cause of the error was a matter of administration internal to the Registry of the Immigration Review Tribunal and not something associated with the actual conduct of the hearing or the process of decision-making following it. Accordingly, one appropriate basis for a limitation on reconsideration in accordance with Bhardwaj is confining such cases to cases of administrative or similar error.

For all these reasons, I conclude that it will only be appropriate for tribunal decisions to be reconsidered pursuant to the Bhardwaj principle when an impugned decision was obviously wrong and when the cause of the error is some administrative or similar mistake. In all but the rarest of cases, tribunal decisions must be treated as final and subject only to reconsideration for error of law on appeal.

Neither of the matters before me today involve questions which are appropriate to be reconsidered by the Tribunal in accordance with these principles. I accordingly decline to accede to the applications for reconsideration. However, there seems to me to be merit in the claim that there was an error of law in the way the Tribunal dealt with the matter of Michael. Nevertheless, any application relating to that matter should be by way of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 18 paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President.

Signed: ...............[sgd].................

Associate (Z Justice)

Date of Decision 9 February 2006

N2005/361

Counsel for the Applicants Mr B Michael in person

Solicitor for the Applicants

Counsel for the Respondent Ms L Gazi

Solicitor for the Respondent Australian Government Solicitor

N2005/879

Counsel for the Applicants Mr T Edwards in person

Solicitor for the Applicants

Counsel for the Respondent Mr C Hutchins

Solicitor for the Respondent Australian Government Solicitor