Minister for Immigration & Multicultural Affairs v Bhardwaj

DECISION For the reasons set out, the Tribunal revokes the cancellation of the Applicant's visa which was issued to him for the purpose of engaging in studies in Australia." Functus officio 9 The applicant submits that upon affirming the cancellation of the respondent's visa by its first decision the Tribunal became functus officio and therefore incapable of revisiting the matter and arriving at its second decision. The applicant claimed, that unlike provisions which may be found in statutes establishing other courts and tribunals, Part 6 of the Migration Act 1958 (Cth) ("the Act"), which established the Tribunal, contains no "slip rule" to remedy oversights on the part of the Tribunal. 10 The doctrine of functus officio has been held to apply to decisions of the Tribunal: Jayasinghe v Minister for Immigration and Multicultural Affairs (1997) 76 FCR 301 per Goldberg J. That decision was referred to, seemingly without enthusiasm, although it was not disapproved, by Finklestein J (with whose reasons Beaumont J agreed) in Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400. Finklestein J (and Beaumont J) adopted an analysis of the functus officio principle in relation to administrative tribunals which parallels, although it did not refer to, the approach taken by Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211: "But in any given case, a discretionary power reposed by statute in the decision maker may, on a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in question." Further, in considering the precise question of functus officio, his Honour referred to s 33(1) of the Acts Interpretation Act 1901 (Cth), which provides that:

"Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires." Gummow J (at 218) approached the question in the case before him by asking whether there was anything in the subject Act to "[suggest] an intention contrary to the presumption embodied in s 33(1) of the Acts Interpretation Act 1901". 11 In Sloane v Minister for Immigration Local Government & Ethnic Affairs (1992) 37 FCR 429 French J exposed some of the competing policy considerations in construing a statute in such cases, at 443: "The question is one of statutory construction. It is not without difficulty and is attended by policy considerations that are in some degree in conflict. The implication into an express grant of statutory power of a power to reconsider its exercise would be capable, if not subject to limitation, of generating endless requests for reconsideration on new material or changed circumstances. Each decision taken in the exercise of such an implied power would arguably attract the application of the Administrative Decisions (Judicial Review) Act … Against the difficulties that may arise from the implication of a power to reconsider a decision there is the convenience and flexibility of a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened without the necessity of invoking the full panoply of judicial or express statutory review procedures. There is nothing inherently angelic about administrative decision-making under the grant of a statutory power that requires the mind that engages in it to be unrepentantly set upon each decision taken." 12 I respectfully agree with Goldberg J that the provisions and evident purposes of the Act compel the conclusion that, where there has been a lawful decision of the Tribunal, its power is, in Gummow J's phrase, "spent" and a reconsideration of the matter, merely because evidence has later come to hand, with a view to a second, factually corrective decision would be beyond the power of the Tribunal. The Act, in my opinion, certainly places a high value on the correct decision being arrived at, but it also sufficiently treats timeliness and finality of decision-making as important as to warrant the conclusion that the Acts Interpretation Act presumption has been rebutted.

13 However, that hardly disposes of the matter. This was a case of inadvertent failure to give the applicant his basal rights under s 360: c.f. Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193. Section 360 of the Act provides that where the matter cannot be dealt with, on the papers, in an applicant's favour: "360 (1) … the Tribunal: (a) must give the applicant the opportunity to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review; and (b) may obtain such other evidence as it considers necessary." 14 On any reasonable view, a "review" by the Tribunal which does not afford an applicant his or her s 360 rights is not a review, such as is contemplated by the Act, at all. Were these proceedings in which the respondent sought prerogative relief, one would say that such an error of law is jurisdictional in nature. (It is still necessary, in such a case, in Australia, to explore that question: Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission [1999] FCA 847). There was indeed a denial of natural justice to the respondent. It may also be inferred by its conduct, that the Tribunal came to the same conclusion. In any case, the respondent was plainly led, by the Tribunal's own well-intended rectification of its error, into a belief that it was unnecessary that he should institute review proceedings. The reliance he wishes to place on a collateral challenge is entirely a "defensive" one, necessitated by the present applicant's actions. I see no reason of principle why the respondent should not be able to make that challenge and every reason why he should: there would otherwise be an affront to the public conscience. In any case, the matter is, in my view, concluded by the decision in FAC v Aerolineas Argentinas (1997) 76 FCR 582. Collateral challenge 15 In FAC it was held that a claim that a determination by a statutory authority was ultra vires could found an action for recovery of moneys paid under it, even though the determination was not first, or at the same time, impugned in other "review proceedings". It is now settled law in Australia that collateral challenges to administrative warrants in

criminal proceedings may be made: see Love v Attorney-General (NSW) (1990) 169 CLR 307 and Ousley v The Queen (1997) 192 CLR 69. 16 The Tribunal's first decision could have been impugned in review proceedings in this Court, quite apart from any breach of natural justice (which would not be reviewable as such: s 476(2)) because the respondent was denied his s 360 rights. According to Minister for Immigration & Multicultural Affairs v Capitly [1999] FCA 193 (which dealt with s 425 - presently indistinguishable from s 360) such an error is reviewable. Affording to an applicant before the Tribunal his or her s 360 rights is plainly a sine qua non of the review process established by s 348 of the Act. However, because of the expiration of a time limit, s 478(1)(b), that decision cannot now be so impugned. But this is not a case where the respondent seeks relief against the Tribunal because it failed to accord him his procedural entitlements: he has had that relief through the Tribunal's unilateral decision to give it to him. The Minister says that the first decision was a valid one, and that therefore the second was ultra vires. 17 This case, thus, raises both the question of "collateral challenge" and the hoary void/voidable conundrum. Void/voidable 18 The balance of Australian judicial opinion appears to accord with the view taken by Dr Aronson and Mr Dyer in their book Judicial Review of Administrative Action (1996). At p 653 they say of unlawful administrative decisions: "The truth is that there is no such thing as a complete nullity; it always takes a court decision to say so. Even a so-called bare declaration of invalidity amounts to more than just a snapshot of the void; it establishes voidness with an authority which the bureaucracy does not dispute." This view was referred to with approval by a Full Court of this Court in FAC and, in Ousley at 130 - 131, Gummow J expressed himself in similar terms (in the same case, however, McHugh J, at 100, said that an administrative act made outside jurisdiction can be challenged in collateral proceedings because it is void).

19 For present purposes, the debate seems arid: in Ousley Gummow J did not regard his view of voidability as impeding the availability of collateral review, and neither did the Full Court of this Court in FAC. Speaking for myself, I think that the most important point was captured by Lord Hailsham in London and Clydeside Estates Ltd v Aberdeen District Council (1980) 1 WLR 182 at 189-190. His Lordship said:

"When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act. In such cases, though language like 'mandatory,' 'directory,' 'void,' 'voidable,' 'nullity' and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind." (emphasis added)

20 In this case the first decision involved a denial of a fundamental obligation owed to the respondent. Thus, there is no obstacle to the respondent now asserting in these proceedings that the first decision was beyond jurisdiction and void, as I think it was. Self-correction 21 However, does even a collateral challenge have to be made in a court so that an errant tribunal is not able to correct its own mistake? In my view a negative answer is required by decisions of Full Courts of this Court in Leung and Comptroller-General of Customs v Kawasaki Motors (1991) 32 FCR 219. In the former case, Finklestein J (at 414) referred to the judgment of Hill and Heerey JJ in Kawasaki in which it was said (at 229-230): "It would in our opinion be strange if an administrative order remained valid until set aside by an order of a court even though the decision-maker did not seek to uphold the order. Courts have long recognised the rule of policy that there is public interest in the avoidance of litigation and the termination of litigation by agreement when it has commenced. The argument that disputed orders could not be treated, by agreement of all concerned, as void would directly conflict with that rule. Parties would be forced into pointless and wasteful litigation." Finklestein J continued: "It is hard to disagree with this conclusion. It would indeed be strange if a decision could not be ignored when the party who obtained it no longer sought to uphold that decision. But the fact that there is no person who seeks to uphold a decision does not say anything about the source of the power of the decision-maker to ignore the decision in question. If the decision is valid when made can it be ignored merely because all of the interested parties wish it to be ignored? Surely the decision-maker could only act in pursuance of the statute that defined his or her powers. I do not see how jurisdiction to ignore any act can be conferred on a statutory decision-maker merely by the consent of the persons who might be affected by that act. It is the Parliament, through its legislation, that confers power on a decision-maker and not those citizens whose rights, privileges or interests might be affected by the decision-maker. But what if the decision is invalid? Can the decision be ignored if the consent of all interested parties is obtained or is there some other principle that governs the situation? In my opinion, the true principle is this. To ignore an invalid decision is not to revoke it. It is merely to recognise that that which purports to be a decision does not have that character. To decide the matter again is not a reconsideration of it. It is in fact the original exercise of the power to make the decision. Hence, the rule embodied in the expression "functus officio" has no application to such a case. Nor is there any need to find either an express or an implicit power of reconsideration. Those doctrines, to the extent that they are applicable to administrative decision-making, only apply to validly made administrative decisions." Among other authorities Finklestein J drew attention to what Lord Reid said in Ridge v Baldwin [1964] AC 40 at 79: "I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present its case, then its later decision will be valid." (emphasis added) 22 To the authorities cited in Leung may be added R v Hertfordshire County Council; Ex parte Cheung, 26 March 1986, TLR 4 April 1986, and R v Kensington & Chelsea Rent Tribunal; Ex parte MacFarlane [1974] 1 WLR 1486, in which, at 1493, it was said that the party denied a hearing: "…can go back to the tribunal, explain why he did not attend, and the tribunal will then have the jurisdiction if it thinks fit to reopen the matter and to reconsider its decision in the light of the representations made by the absent party … [But,] tribunals must be very firm in the view which they take in this kind of case. There must be no question of absent parties taking no action over a period of months, and then coming back to the tribunal with some story of having been ill or in South America when the hearing occurred. Tribunals must be satisfied before they reopen a case that there is a good argument on the merits for giving the absent party a chance to be heard, that he has got a real and reasonable excuse, that he had to be given a further chance and that, in considering whether he ought to be given a further chance, due regard must be had to the other party to the proceedings and to any third parties who may have acted upon the tribunal's decision on the assumption that it was right and to be sustained. All these matters must be taken into account..." 23 In Hertfordshire the Privy Council was reported thus: "That was not to say they had no power to reconsider their decisions. It would be strange indeed if a public authority which discovered it had inadvertently denied a citizen a benefit to which he was entitled, could not correct its error.

Indeed, it would have a duty to consider doing so, subject to a discretion as to what action to take, exercised in accordance with the requirements of good administration." 24 While I am bound by the majority view in Leung, it might be noted that the reasons expressed by Finklestein J do not, with respect, meet a point made by Heerey J in that case. Heerey J preferred not to decide the case on the basis, accepted by Finklestein and Beaumont JJ, that the purported administrative decision in question (which had been obtained by fraud) was simply void, so that there was nothing to revoke. Heerey J preferred the view that there was an implied power to revoke the decision which was valid. He pointed out (at 405): "However the revocation of the certificate would be in itself a decision attracting the rules of natural justice. The person concerned would be entitled to know the grounds on which it was now said that he or she did not meet the criterion in question … and to be given the opportunity to put a case. An approach which treats a decision to grant a certificate on a wrong factual basis as being not a decision at all and something which can be ignored does not accommodate these considerations." 25 If one applied to the case what are, to my mind, the important concerns raised by Heerey J, one might say: "The Minister was told by the Tribunal that his delegate's decision was correct, upon such notification, before the Tribunal embarked on a reconsideration of the matter, the Minister should, in justice, surely be afforded the same opportunity to question the justification for a re-opening as he would have had if the respondent had sought judicial review of the original decision". It is true that an application to this case of the "principle" expounded by Finklestein and Beaumont JJ would not meet such considerations and that in some cases they might tend against a conclusion that the statute enables reconsideration by an administrative body. 26 However there is, in the particular circumstances of a case such as the present one, in my opinion, no injustice to the Minister but merely inconvenience in his being denied the opportunity just referred to. That is because: · the opportunity for the Minister to question re-opening would only arise if the Tribunal itself had not acknowledged and sought to redress what it clearly regarded as its own manifest error; · the Minister, not being a party to the review by the Tribunal, would have had no redress if the Tribunal had granted the respondent's application for an adjournment, no matter how unmeritorious such application might have been, unless the Minister were prepared to assert, as a ground of an application of his own in this Court to review the final decision towards which such adjournment would have been a step, that the Tribunal's error in granting the re-opening was such that it amounted to an error reviewable by this Court; · the Minister could, in the instant proceedings, have sought to litigate any such legal error; and · the Minister has chosen not to do so. 27 Hence, in my opinion, it makes no difference whether the matter is analysed as either a case of an implied power to revoke (and an implied revocation of) the earlier decision or as a matter where, in law, there was no earlier decision. Whichever way one analyses it, it seems to me that the Tribunal does have a power, albeit unarticulated in express statutory language, to reconsider a decision at least in circumstances where: in coming to that decision it has by its own mistake failed to accord an applicant a fundamentally important right; the error is not in dispute between the interested parties; and the error is material to the case before it. Such a power does not infringe upon the doctrine of functus officio, which still operates as a general rule under the Act. To the extent that such circumstances may be considered an exception to the functus officio rule, such an exception is necessary to allow the Tribunal to fulfil its primary purpose under the Act: affording fairness to applicants and coming to the best reasonably possible decision in their cases. Discretion of the Court 28 There is another way, if the foregoing be wrong, in which the case might and, in my opinion, ought to be resolved in the respondent's favour. That would be by the Court withholding relief, in its discretion, from the Minister. 29 It would be a rare case, I acknowledge, in which the Court would so exercise its discretion: see Aronson and Dyer (op cit) p 654. However, I consider this to be such a case. 30 The Tribunal failed to accord the respondent his rights under s 360 and considered, rightly, that it was at fault in this. The ends of justice, including the saving of costs, could be served by the Tribunal, informally and in a common sense way, having accepted, as it did, its own error and reconsidering the merits of the matter. The Tribunal concluded that the merits lay with the respondent. However, by its helpful and corrective approach, the Tribunal unwittingly made it impossible for the respondent to approach this Court.

31 There is no substantial purpose to be served by the present proceedings, despite the Minister's understandable claim that the law must be upheld, except that of the vindication of formalities and the unmeritorious denial to the respondent of the fruits of his victory before the Tribunal on the merits. While the Minister's intentions in challenging the Tribunal's actions have been honourable and are understandable, it would force the Court to appear pharisaical to give legal effect to the applicant's criticism of the Tribunal, and the interests of justice do not otherwise demand that the Court should intervene.

Disposition 32 For these reasons the application will be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate: Dated: 22 December 1999 Counsel for the Applicant: R Henderson

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Respondent: M Newman of Newman and Associates