Minister for Immigration & Multicultural Affairs v Bhardwaj

Federal Court of Australia|2000-06-15|Before: Lehane JJ, Carr JJ

Introduction 1 This is an appeal from the decision of a judge of this Court, made on 22 December 1999, to dismiss the appellant's application for an order of review of a decision by the Immigration Review Tribunal ("the Tribunal"). The Tribunal was re-named as the Migration Review Tribunal (and certain changes were made to its manner of operating) by the Migration Legislation Amendment Act (No. 1) 1998 (Cth). The Tribunal's decision, made on 22 October 1998, was to revoke the cancellation by a delegate of the appellant of a student visa issued to the respondent.

Factual Background 2 The respondent, then aged 29 and a citizen of India, entered Australia on 4 July 1997 with a student visa. The visa had been granted to him in order to undertake a Diploma of Information Technology course at Holmesglen Institute of Technical and Further Education at Chadstone in Victoria. On 25 February 1998 the Institute notified the appellant's department ("the Department") that the respondent had failed to complete the nominated course. 3 In March 1998 the respondent enrolled in a Diploma of Information Technology Course at the Australian International College of Business in Sydney. On 20 May 1998, in response to an enquiry from the Department, the College advised the Department that the respondent had "… completely failed to attend the College". The College also informed the Department that the respondent had failed to reply to a letter (sent by it on 23 April 1998) expressing concern at his apparent failure to attend any classes and asking him to make contact within one month. 4 On 19 June 1998 a delegate of the appellant wrote to the respondent advising him that his visa might be cancelled under s 116 of the Migration Act 1958 (Cth) ("the Act") and invited him to submit any written response indicating why that action should not be taken. No response was received. On 6 August 1998 an officer in the Department cancelled the respondent's student visa. 5 On 21 August 1998, through a migration agent, the respondent applied to the Tribunal for review of the decision to cancel his student visa. The letter accompanying that application stated that the respondent believed that there were no grounds for cancelling his visa and that a submission would be sent to the Tribunal. On 2 September 1998 the Tribunal wrote to the respondent and his migration agent advising that: · the Tribunal had considered the papers relating to the respondent's case, but was unable to make a decision on that information alone and that therefore he was entitled to attend a hearing of the Tribunal to give oral evidence; · if he wished to give oral evidence, arrangements had been made for a hearing to take place at the Tribunal's office at 9.30 am on 15 September 1998; · he should immediately telephone the Tribunal (a contact person and telephone number were specified) to say whether he wished to have a hearing and that he should complete and return an enclosed form ("the Offer of Hearing Form") within 14 days of the date of the letter; and · generally advising him about his rights and inviting him to submit any written arguments or written evidence to the Tribunal within 14 days of receipt of the letter. 6 The letter included the following paragraph: "If you have indicated you wish to attend a hearing and think you may be unable to attend on the day arranged, you should contact me immediately. The hearing is important and a postponement will only be granted if there are unavoidable reasons. If a postponement is not granted and you fail to attend the hearing, the Tribunal may proceed to make a decision on the available material." 7 There is no evidence that the respondent or his migration agent made any contact with the Tribunal until, on the evening of 14 September 1998, the respondent's migration agent sent a facsimile to the Tribunal advising that the respondent was sick and unable to attend the hearing. The fax enclosed the duly completed Offer of Hearing Form indicating that the respondent would like to appear before the Tribunal to give evidence and/or present arguments. The fax also stated that the respondent wished to attend the hearing on a later date if allowed by the Tribunal. It requested the Tribunal to allow the respondent time to attend the hearing on the following Monday or on any suitable date which the Tribunal thought fit. The respondent's agent said that it would "… keep updating you regarding the sickness of the applicant …". 8 The fax was received by the Tribunal at 6.40 pm. It was appended to the Tribunal file behind the file copy of its letter dated 2 September 1998 to the respondent, but was not brought to the attention of the relevant staff member at the Tribunal nor to the attention of the member who constituted the Tribunal. 9 On 16 September 1998 the Tribunal affirmed the decision to cancel the respondent's student visa. Its reasons for decision included the following: "The Tribunal considered this matter on the papers and advised that it would be unable to determine the matter favourably. It indicated to the Applicant that a hearing would be required. There were several attempts to organise a hearing date and due to the Applicant's illness, the suggested dates were deferred. On 15 August 1998, again through his immigration agent, the Applicant asked for further extension for the suggested hearing date and this was agreed to. [We have underlined these words because they appear to us to be incomprehensible, given that the respondent's application for review was not lodged until 21 August 1998. At the hearing of this appeal it was accepted that they had been inserted into the Tribunal's reasons by typographical error.] The matter was set down for hearing on 15 September 1998. On the evening of 14 September 1998, the Tribunal was contacted by the Applicant's immigration adviser who gave every indication that the Applicant would proceed with the hearing. On 15 September there was no appearance by the Applicant, his immigration agent nor was there any indication or advice in relation to the failure to attend. In circumstances such as this, the Tribunal has no option but to proceed to determine the matter on the information before it. The Tribunal is satisfied that the Applicant has had sufficient opportunity to produce to it whatever information the Applicant would like to be taken into account including the opportunity of giving oral evidence. No such information has been forthcoming. The Tribunal notes that the Applicant also never replied to the Department's request for information that it might take into account in relation to determining whether or not the visa should be cancelled. On the basis of the information before it, the Tribunal considers that the cancellation of the visa was an appropriate decision based on the evidence before the Department. DECISION For the reasons set out above, the Tribunal determines that the decision to cancel the Applicant's visa should be affirmed." (emphasis added) 10 On 17 September 1998 a copy of the decision (duly certified by a Tribunal officer as being a true copy) was sent to the respondent and his migration agent. We shall refer to that decision as "the September Decision". Also on 17 September 1998, the Tribunal sent a memorandum to the Secretary of the Department advising that the Tribunal had completed its review of the respondent's application lodged on 21 August 1998 and enclosing a copy of the September Decision. 11 It would appear that, following representations made by the respondent's migration agent, the Tribunal agreed further to consider his application for review. On 21 September 1998 the Tribunal wrote to the respondent fixing a new hearing date, namely, 23 September 1998. That hearing duly took place. At the hearing, evidence was put before the Tribunal that the respondent had attended an English language course at Kookaburra College in Sydney from 4 May 1998 to 3 July 1998 with an attendance record of 93% and had commenced a business course at the same college on 6 July 1998 with a satisfactory attendance. On 22 October 1998 the Tribunal decided to revoke the cancellation of the respondent's visa. Its reasons for decision included the following: "The Applicant is presently enrolled at the Kookaburra College at Wentworth Avenue and according to the material provided with his submission to the Tribunal, he has been attending his course and he is now engaged fulltime in a course at an appropriate level with the aim of achieving a diploma in Business Studies. The Tribunal has considered the explanation of the Applicant and believes that the difficulties that he has encountered have related firstly to his enrolment in a course at too high a standard, and secondly, his reliance on advice by his then agent as to what he should do next. The situation was complicated by the fact that the agent withheld the fees that had been paid to him and brought about the cancellation of his enrolment at the Australian International College of Business. The Tribunal believes that the Applicant could have been more responsible but also accepts that he has been subject to some unfortunate treatment at the hands of a third person. It does appear that he is presently applying himself to his studies and his fees have been paid directly by funds provided by his parents. He has a new agent representing him. Having considered this matter, the Tribunal believes that the Applicant should be given a further opportunity to demonstrate his commitment to the studies which first brought him to Australia. DECISION For the reasons set out above, the Tribunal revokes the cancellation of the Applicant's visa which was issued to him for the purpose of engaging in studies in Australia." 12 We shall refer to that decision as "the October decision". On 19 November 1998 the appellant filed an application for an order of review in this Court seeking review under Part 8 of the Act of the October Decision.

The Decision at First Instance 13 At first instance the appellant contended that the Tribunal had erred in law by purporting to make the October Decision because it had become functus officio after making the September Decision. The appellant sought to rely upon the decision of Goldberg J in Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301. Goldberg J there held that the Refugee Review Tribunal did not have the power to reconsider its decision that an applicant was not entitled to a protection visa; that it had acted correctly in informing the applicant that it was then functus; and that there was no implied power on its part to reconsider its decision. 14 The learned primary judge held that the decision in Jayasinghe should be confined to cases where the relevant Tribunal had made a "lawful decision" and where reconsideration was sought "merely because evidence has later come to hand". His Honour held that the September Decision was not a lawful decision because the respondent had not received the hearing to which he was entitled under s 360 of the Act and that there had been a denial of natural justice. The primary judge also held that the respondent was entitled to make what his Honour referred to as a "collateral challenge" to the September Decision as being beyond jurisdiction. 15 His Honour further held that, in any event, there was no need for such a collateral challenge to have been made to the Court before what he described as "an errant tribunal" was able to correct its own mistake. His Honour said this (at para 27): "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." 16 Finally, his Honour held that, even if the Tribunal were functus officio, the Court would in its discretion refuse to set aside the October decision.

The Appeal 17 The appellant submitted that the Tribunal was functus officio once it had made the September Decision and that, accordingly, the October Decision should be set aside. The appellant relied upon the decision of French J in Sloane v Minister for Immigration, Local Government & Ethnic Affairs (1992) 37 FCR 429, which was followed in Jayasinghe in that regard. 18 Insofar as his Honour may have held that the respondent could seek to uphold the October Decision by making a collateral challenge to the September Decision, the appellant contended that this course was precluded by the time limit, imposed by s 478 of the Act, for lodging an application for review. Moreover, s 476(2) specifically excluded a breach of the rules of natural justice as a ground upon which review might be sought in respect of "judicially reviewable decisions", and s 485(1) denied the court any other jurisdiction in respect of such decisions. 19 The appellant contended that the Tribunal's failure to advert to the request for an adjournment did not amount to a failure to comply with s 360 of the Act, which requires that an opportunity be given by the Tribunal to the applicant for review to appear. The appellant submitted that a failure to grant or consider an adjournment does not negate the previous granting of an "opportunity to appear". Although the submission was not developed in oral argument, the decision of a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193 was, so it was submitted, wrongly decided and should not be followed. 20 Finally, the appellant submitted that if he made good his challenge to the October Decision and the Court could not set aside or ignore the September decision, it had no discretion to refuse to grant the relief sought.

The Statutory Framework 21 The legislative scheme, as it stood at the time, is relevantly as follows. 22 The exercise of the Tribunal's powers and its way of operating are dealt with by Division 4 of Part 5 of the Act: · The Tribunal shall, in carrying out its functions, pursue the objective of providing a mechanism of review that is "fair, just, economical, informal and quick" (s 353(1)). · In reviewing a decision, the Tribunal is (a) not bound by technicalities, legal forms or rules of evidence; and (b) shall act according to substantial justice and the merits of the case (s 353(2)). 23 The conduct of the Tribunal's review is dealt with in Division 5 of Part 5 relevantly as follows. · An applicant may give the Tribunal a written statement in relation to any matter of fact the applicant wishes the Tribunal to consider; and written arguments in relation to the issues (s 358(1)), and the Secretary of the Department may give written argument to the Tribunal (s 358(2)). · The Tribunal may make a decision on review without taking oral evidence if it is prepared to make the decision or recommendation that is most favourable to the applicant, after having considered the material contained in the papers (s 359(1)). · Where the Tribunal does not make such a decision, it 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 may obtain other evidence as it considers necessary (s 360(1)). The Tribunal is not otherwise required to allow any person to address it orally about these issues (s 360(2)). The Tribunal shall notify the applicant of this right to appear (s 361(1)(a)). The Tribunal must also notify the applicant that within seven days of receiving this notification, the applicant may give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice (s 361(2)); and written evidence from a person or persons named in the notice, or other written material relating to the issues arising in relation to the decision under review (s 361(2A)). If the Tribunal is so notified, it must have regard to the notice, but is not required to comply with it (s 361(3)). · To avoid doubt, nothing in Div 4 requires the Tribunal to adjourn the review, or delay making the decision, so that evidence (oral or otherwise) may be given by the applicant or obtained by the Tribunal from any other person (s 362(3)). · The Tribunal shall take oral evidence in public; however, it may direct the evidence be taken in private if it is satisfied that it would be in the public interest to do so, or that it would be impracticable to take particular oral evidence in public (s 365(1), (2) and (3)). Where the Tribunal gives such a direction, it may give directions as to the persons who may be present when the oral evidence is given (s 365(4)). · The Tribunal may allow a person to appear before it, or give evidence, by telephone, closed-circuit television or any other means of communication (s 366(1)). If this occurs when a review is in public, the Tribunal must take such steps as are reasonable to ensure the public nature of the review is preserved (s 366(2)). · While the applicant is appearing before the Tribunal, he or she is entitled to have another person present to assist (s 366A(1)). The assistant is not entitled to present arguments to, or address, the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so (s 366A(2)).

Conclusions on the appeal 24 As has been noted, both Sloane's case and Jayasinghe's case are strongly relied upon in support of the appeal. But, in our view, the circumstances of both decisions are distinguishable in the present context. 25 In Sloane, the Minister's delegate refused an application for a temporary entry permit sought under concessional regulations made under the migration legislation as it then stood. The applicant then sought review by the Immigration Review Tribunal of this refusal. The Tribunal informed the applicant that he was not eligible for review. The applicant next asked that the refusal of the application by the Minister's delegate be reviewed by the delegate in light of two additional medical reports. The request was declined by the delegate. Judicial review was then sought by the applicant of, inter alia, the "decision" said to have been made by the Minister's delegate refusing to reconsider the delegate's earlier decision. The application was dismissed on the ground that, absent any express provision, it would not be proper to imply a power to reconsider such a decision. 26 French J said (at 444): "… the existence of the regulation making power and the detailed provisions of s 115 in relation to the review of decisions tends to suggest a legislative purpose of codifying and confining the bases upon which decisions made under the Act or Regulations are able to be reviewed. In my opinion there is no implied power on the part of an officer refusing the grant of a December 1989 (Temporary) Entry Permit to reconsider that decision once it has been formally made and notified to the applicant." 27 But in the present case, no question arises of reconsideration by the Minister or his delegate. Further, the Tribunal always intended here that the respondent, if he wished, as he did, should have the opportunity to present his case at a hearing. In the events which happened, this did not occur, not through any fault on the respondent's part, but because the Tribunal, by an oversight, proceeded on the mistaken assumption that the respondent, rather, was content for the matter to be dealt with on the papers only. 28 Moreover, it appears that in Sloane, no reliance was sought to be placed upon the provisions of s 33(1) of the Acts Interpretation Act 1901 (Cth) which are as follows: "33(1)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." 29 See, in this connection, Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J at 211, 218. 30 We will consider later whether the present "occasion" "requires" that the Tribunal's power should be exercised or its duty performed. For our immediate purposes it is sufficient to note that it appears also that the provisions of s 33(1) were not sought to be relied upon in Jayasinghe. 31 In any event, the circumstances of Jayasinghe (which occurred after the Migration Reform Act) 1992 (Cth) were different from those here, but were similar in some respects to those in Sloane. The applicant in Jayasinghe had applied for a protection visa. The Minister's delegate had refused the application. The applicant had sought review by the Refugee Review Tribunal of that decision. The applicant was granted an oral hearing by the Tribunal, but in its decision the Tribunal had affirmed the delegate's decision to refuse to grant the protection visa. Yet, some months later, the applicant requested the Tribunal to reconsider its decision. As has been said, the Tribunal refused to do so, regarding itself as functus. An application for an order by way of judicial review directing the Tribunal to reconsider failed. 32 Goldberg J referred (at 312) to the following observation by French J in Sloane (at 443): "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." 33 There is, of course, no suggestion in the present matter of the generation of endless requests for reconsideration on new material or in changed circumstances. On the contrary, a single request was made for an oral hearing in circumstances where the Tribunal always intended to afford that hearing, if requested. 34 The material provisions of the legislative scheme governing the exercise of the Tribunal's powers (Division 4) should be borne in mind in the present connection. 35 It will be recalled that the Act provides that an objective of the Tribunal is to provide a mechanism that is "fair, just, economical, informal and quick" (s 353(1)). In our view, the course taken by the Tribunal here, in deciding to look again at the matter, achieves this objective. The Tribunal always intended that, if he wished, the applicant would have an oral hearing. In this sense, it may be said that it was both fair and just that such a hearing actually be made available to the applicant, he having evinced his intention to exercise his right to a hearing. If an oral hearing had not been made available, the applicant would have had open to him no other course than to seek from a court of competent jurisdiction relief in the form of judicial review by way of declaratory or other appropriate relief. The need to resort to such litigation could hardly be described as a situation which is "economical, informal and quick" for any of the parties. 36 Another aspect of the legislative scheme is that the Tribunal "is not bound by technicalities, [or] legal forms …" (s 353(2)(a)). Again, the course taken here by the Tribunal in revisiting its September "decision" is consistent with the statutory philosophy. 37 Moreover, the Tribunal is bound to "act according to substantial justice and the merits of the case" (s 353(2)(b)). Once more, the stance taken by the Tribunal in reviewing its earlier approach to the matter gave effect to this requirement. 38 The characterisation which we would give to the events in question, when viewed against the present statutory framework, accords with the approach taken at common law, and with the principles of good administration in circumstances of the present kind. In Ridge v Baldwin [1964] AC 40, Lord Reid said (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 his case, then its later decision will be valid. An example is De Verteuil's case." 39 In De Verteuil v Knaggs [1918] AC 557, it was held that the power given to the Governor by the Trinidad Immigration Ordinance "on sufficient ground shown to his satisfaction" to transfer the indentures of immigrants from one employer to another cannot properly be exercised without enquiry; and that, except in special circumstances such as an emergency, any person against whom a complaint is made, must be given fair opportunity to make any relevant statement and to controvert any relevant statement made to his prejudice. It was further held that the discretion is properly exercised when, after an order has been made ex parte, the employer is given a fair opportunity to answer the complaints, and the order is put into operation only after a consideration of the employer's explanation. 40 Lord Parmoor said (at 563): "[T]here is no reason why the acting Governor may not at any time review or alter a decision previously given, and it may be his duty to do so, in the prudent exercise of his discretion, on a further consideration of all the relevant factors after full inquiry." 41 As the primary Judge noted in the present case, there is more recent English authority holding that where a tribunal or public authority realises it has inadvertently denied a citizen a benefit, the tribunal or authority has the power and the duty to do so, subject to a discretion as to what action to take, which discretion is to be exercised in accordance with the requirements of good administration (see R v Kensington and Chelsea Rent Tribunal; Ex parte Macfarlane [1974] 1 WLR 1486 at 1493; R v Hertfordshire County Council; Ex parte Cheung, 26 March 1986, TLR 4 April 1986). 42 Furthermore, the statutory plan with respect to the conduct of the Tribunal's review was, we think, complied with in the present circumstances. As we have noted, Division 5 contemplates that unless on a review "on the papers" the Tribunal is prepared to make the decision or recommendation most favourable to the applicant, the Tribunal must give the applicant "the opportunity" to appear before it (s 360(1)(a)). In Capitly, above, the Full Court considered the meaning of the provisions of s 425(1)(a) of the Act as it then stood. Those provisions are, relevantly, in the same terms as s 360(1)(a). There, Wilcox and Hill JJ said (at paras 34 - 35): "In the present context an opportunity to give evidence is not given once and for all by the notification to an applicant of a hearing date in the future. The opportunity must be a continuing opportunity and take account of the circumstances which from time to time exist, up until the opportunity is either availed of or not. For example, if an applicant who had received a letter such as that sent to Mr Capitly on 8 July 1997 had been severely injured in a car accident so that he could not attend the hearing on the day on which it was scheduled, he could hardly have then relevantly been given an opportunity to appear before the Tribunal to give evidence. That opportunity is one which must exist throughout the period until review, including the date on which it occurs. In our view an applicant who is sick and cannot attend a hearing is not relevantly afforded an opportunity to appear to give evidence where the Tribunal refuses to grant an adjournment." (Emphasis added) 43 Their Honours went on to say (at para 36): "[The applicant] sought and was denied an adjournment in circumstances where the denial of that adjournment operated to negate his opportunity to appear before the Tribunal to give evidence. It is for these reasons that the Tribunal can properly be said to have failed to comply with the procedures laid down in s 425(1). In the result its decision must be set aside and the application for review remitted to the Tribunal for determination according to law." 44 We respectfully agree. 45 In the present case, if upon being apprised of the existence of the agent's fax dated 14 September 1998, the Tribunal had refused the applicant's request to further consider the matter further, an order in the nature of mandamus, would, we think, have been granted on the respondent's application, directing the Tribunal to determine the matter. This was ordered in Capitly. In accordance with the requirements of good administration, the Tribunal here pre-empted the need for judicial intervention. But the substantial position can be no different. In other words, if there is a duty to act in an appropriate fashion, it can hardly be beyond power to do so without being compelled to act by court order. 46 In any event, the particular circumstances of the case indicate, in our view, that within the meaning of s 33(1) of the Acts Interpretation Act, the "occasion" "requires" that both the power and the duty of the Tribunal to review the matter should be exercised and performed at the time when the Tribunal was made aware that, in purportedly making its September decision, it had proceeded, in ignorance, upon the false assumption that the respondent had elected not to ask for an oral hearing. 47 We agree, respectfully, with the primary Judge's identification (in the passage set out at para 15 above) of circumstances relevant to the exercise of the power to reconsider. As a matter of perhaps over abundant caution, we would add the requirement that the reconsideration by the decision-maker should take place within a reasonable time of the original decision - a matter to which Lord Widgery CJ referred in MacFarlane at the page cited above. 48 We do not expect that course adopted by the Tribunal will create any real practical difficulties. The particular and no doubt unusual circumstances of the present case, which as we have said differ from both Sloane and Jayasinghe, are unlikely to occur frequently. At all events, the Act has recently been amended so as to provide, in s 368A, that the Tribunal must now give advance notice of the publication of its decision. This provision should avoid a situation of the kind that arose here. 49 The exercise of the Court's discretion was considered by the primary Judge but, as has been noted, obiter and only if it were to be held that the Tribunal was "functus". Given our conclusion on the primary question argued, it is not necessary for us to consider whether discretion would have been available as an independent ground for refusing relief. 50 Since writing the above we have noticed the recent decision of the Full Court in Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240 in which the functus doctrine was considered. However, the case is clearly distinguishable on its facts. 51 We would dismiss the appeal, with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont and Carr.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

LEHANE J: 52 I have had the advantage of reading, in draft, the reasons for judgment of Beaumont and Carr JJ. It is unnecessary for me to repeat or add to their Honours' account of the factual background, which I gratefully adopt. 53 Beaumont and Carr JJ have also described much of the statutory background. There are, however, some additional aspects of that background to which I should refer, since they largely explain why I respectfully disagree with the conclusion reached by their Honours. The provisions of the Migration Act 1958 (Cth), dealing with the consideration of applications for visas, decisions to grant, refuse or cancel visas, the review of those decisions on the merits and, finally, the judicial review of decisions under the Migration Act, are complex. An aspect of their complexity is that they are prescriptive in detail, to a quite unusual extent, while at the same time providing, in important respects, very broad standards in accordance with which the tribunals, in particular, are required to operate. It is fair to comment that those characteristics have given rise to numerous difficult issues concerning the construction and operation of the legislation with which the Court has had to grapple since the commencement of the Migration Reform Act 1992 (Cth). 54 It is important, in my view, to note some of the prescriptive provisions of the Migration Act which were in force at the time when the Immigration Review Tribunal made the September decision and the October decision (I shall continue to use the terminology adopted by Beaumont and Carr JJ). The delegate's decision to cancel the respondent's visa was, we may take it, a decision prescribed to be an IRT‑reviewable decision (that is, one which might be reviewed by the Tribunal) under s 346(1)(d) of the Migration Act: that is the basis on which both the Department and the Tribunal proceeded, and it was not suggested that they were wrong in doing so. Section 347(1)(b) required an application for review of the delegate's decision to be "given to the Tribunal within the prescribed period"; s 347 set maximum, but not minimum, periods which might be prescribed. The application being "properly made under s 347", the Tribunal was required to review it: s 348(1). Sections 349(1) and (2) provided: "349(1) The Tribunal may, for the purposes of the review of an IRT‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) 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."

The Registrar was obliged, as soon as practicable, to give the Secretary (of the Department) written notice of the making of the application (s 352(1)) and the Secretary was required, within ten working days thereafter, to give the Registrar copies of a statement setting out the findings of fact made by the person who made the decision under review, referring to the evidence on which those findings were based and giving the reasons for the decision (s 352(2)). Section 368 required the Tribunal, when it made its decision, to prepare a written statement setting out its decision, the reasons for it and its findings on any material questions of fact, and referring to the evidence or other material on which the findings of fact were based. A copy of that statement was to be given to the applicant and the Secretary within fourteen days after the decision was made (s 368(2)); and, at the same time, the Tribunal was required to return to the Secretary the documents which the Secretary had provided to it and also to give the Secretary a copy of any other documents containing evidence or material on which its findings of fact were based: s 368(3). I can complete this part of the picture by adopting, but not repeating, the summary by Beaumont and Carr JJ of the important provisions governing the Tribunal's conduct of the review.

55 The orders from which the Minister appeals were made in a proceeding under Pt 8 of the Migration Act. Again, some of the provisions of Pt 8 should be noted. There is a strict time limit within which an application for review must be lodged with the Court: s 478. Review is available only on the grounds allowed under s 476. The Court has no jurisdiction in respect of judicially‑reviewable decisions (including decisions of the Tribunal) except that provided by Pt 8 or by s 44 of the Judiciary Act 1903 (Cth): s 485(1); and, in dealing with a matter remitted by the High Court under s 44, the Court has no powers other than those which it has in dealing with an application under Pt 8. Section 481 prescribes the classes of orders which the Court may make on an application for review under Pt 8. 56 The fundamental question on the appeal is whether the Tribunal had power either to revoke or to ignore the September decision and to proceed to make the October decision as its decision on the respondent's application for review. In my opinion, a proper construction of the Migration Act leads to the conclusion that the Tribunal cannot revoke a decision it has made. Section 33(1) of the Acts Interpretation Act 1901 (Cth) is inapplicable since a "contrary intention" appears. In Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, Gummow J said, at 211: "There was 'an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by a statute was exhausted by its first exercise': Halsbury's Law of England (1st ed), Vol 27, p 131. However, s 33(1) of the Acts Interpretation Act 1901 (Cth) … 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'. But in any given case, a discretionary power reposed by statute in the decision maker may, upon 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 the 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 issue."

Gummow J proceeded, at 218, to hold (as did Neaves J at 195 and Ryan J at 201) that there was nothing in the Migration Act suggesting an intention contrary to the application of s 33(1) in relation to the Minister's power to make a deportation order.

57 The present statutory context, however, is in my view significantly different. If s 33(1) applies to the power of the Tribunal to make a decision upon an application for review, it applies generally: that is, the language provides no ground for a conclusion that the section applies to some decisions but not others or to decisions which the Tribunal might wish to revoke and replace for some reasons, or in some circumstances, but not others. Thus, if the Tribunal might revoke a decision because, on reflection, it discovered or concluded that it had not (perhaps inadvertently) complied with s 360, it might do so equally if the decision were vitiated in some other way or simply because, whether upon a reconsideration of material before it at the time it had made the decision or on a consideration of material provided to it later, it considered some other decision to be preferable to that which it had first made. Distinctions cannot be drawn between such cases, in my view, on the basis that, whereas in some "occasion requires" a further exercise of the decision‑making power, in others it does not. 58 It is on that basis, in my view, that observations such as those of Lord Reid in Ridge v Baldwin [1964] AC 40 at 79 and, for that matter, cases such as Comptroller‑General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219, are to be distinguished. Generally, s 33(1) of the Acts Interpretation Act will apply in relation to a statutory power or duty. But the statutory context may reveal a contrary intention. In my opinion, the present statutory context does so. It is one which, plainly, places a high value on certainty. There are strict time limits, detailed provisions governing the conduct of review proceedings and precise requirements as to the way in which the Tribunal is to record its decision and the reasons for it and is to notify and publish its decisions. There is then a limited form of judicial review, for which application may be made only within a time limit of twenty-eight days which cannot be extended. It would, in my view, be incongruous with that scheme for the Tribunal to have, in relation to a particular application for review, a power from time to time, as occasion requires, to make (and revoke) decisions. The considerations referred to by French J in Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 442‑444 and by Goldberg J in Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 at 311‑315 are, to my mind, compelling. The recent majority decision of the Full Court in Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240 is consistent with the approach taken in those cases. Certainly it is true that neither French J nor Goldberg J referred to s 33(1) of the Acts Interpretation Act and the observations of Goldberg J were directed to the question whether the Refugee Review Tribunal, having made a decision, was functus officio. But, as Gummow J makes clear in Kurtovic and as is implicit in the judgment in Jayasinghe, to say that a decision‑maker is functus officio is simply to say that the decision‑maker, having made a decision, does not have power to revoke it and make a new decision. And considerations, arising from a statutory context, which lead to a conclusion that, having made a decision, a decision‑maker is functus officio substantially correspond with those which indicate an intention that s 33(1) is not to apply. 59 The respondent relied also on the principles discussed by Finkelstein J (with whom Beaumont J agreed) in Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400. Under the Australian Citizenship Act 1948 (Cth), the Minister had power to admit a person to Australian citizenship. There were two steps in the process. The Minister had discretionary power to grant a certificate of citizenship where the Minister was satisfied that the applicant met stated criteria (s 13(1)). Once a certificate had been issued to an applicant, the applicant might make a pledge of commitment (s 15). Once the pledge had been made, the applicant was an Australian citizen. The question in the case was whether the Minister, having issued a certificate of citizenship, might revoke it, or whether the power to grant it might be treated as not having been exercised, in circumstances where, before the applicant made the pledge, it was discovered that the issue of the certificate had been induced by misrepresentations on the part of the applicant. Heerey J held, at 405, that there was necessarily implied in the Australian Citizenship Act a power, before the pledge was made, "to revoke the certificate if it comes to the notice of the Minister that a statutory criterion for the issue of the certificate did not in fact exist." Finkelstein J, with whom Beaumont J agreed, concluded that the Minister was entitled, in the circumstances, to "revoke" the certificate on the basis that "[t]he original decisions, having been obtained by a misrepresentation, were not decisions made in the true exercise of the power conferred by s 13(1) and can be treated as having no effect". 60 After discussing the decision of the Full Court in Kawasaki,Finkelstein J continued, at 414: "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." 61 His Honour proceeded to discuss authority for those propositions and to reach the conclusion which I have quoted. In the introduction to his discussion of that topic, Finkelstein J said, at 413: "Sometimes it is also necessary to inquire whether an invalid decision has any effect. There is no doubt that an invalid administrative decision can have operational effect. For example it may be necessary to treat an invalid administrative decision as valid because no person seeks to have it set aside or ignored. The consequence may be the same if a Court has refused to declare an administrative decision to be invalid for a discretionary reason. In some circumstances the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside." 62 His Honour had earlier indicated, at 411, what he meant by an "invalid decision": "By an invalid decision I mean a decision which can be impugned for jurisdictional error or for a failure to observe procedural fairness or one that is brought about by fraud or misrepresentation." 63 It may be assumed for present purposes that the September decision was "invalid" in that sense. That assumption is consistent with the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193 (where an appeal was dismissed from a decision, on an application for judicial review under Pt 8, to set aside a decision of the Refugee Review Tribunal, in circumstances where the Tribunal had not complied with s 430(1) of the Migration Act). But again, in my view, it is incongruous with the statutory context to suppose that the Tribunal was authorised to ignore the September decision because it was invalid and to proceed with a hearing, and to make the October decision, on the footing that its power and duty to decide the respondent's application had not been exercised. This case is, of course, one in which it may fairly be thought to be highly convenient that the Tribunal should be able to start again and highly inconvenient that it should not. But what if a decision were induced by fraud? That is a ground on which the Court might review it under Pt 8, but only if an application were lodged with a registry of the Court within the prescribed period. It could hardly be supposed to have been the legislative intention that the Tribunal, being persuaded two months after it made its decision that it had been induced by fraud, might ignore it and start again. A breach of the rules of natural justice is not, of itself, a ground on which judicial review is available: s 476(2)(a). Again, it is to my mind incongruous with the scheme of the Migration Act to suggest that, if the Tribunal were persuaded that it had failed to observe the rules of natural justice in connection with the decision, it might (in its discretion?) ignore the decision. In short, in the present statutory context the principles expounded in Leung do not empower the Tribunal to disregard or reconsider a decision which it has made which it believes, or is persuaded, is "invalid". 64 A consideration of the availability of "collateral challenge" leads, in my view, to no different result. The particular collateral challenge contemplated is the reliance, by the respondent, on the invalidity of the September decision so as to resist the Minister's claim that the October decision was made without power. In concluding that such a collateral challenge was open to the respondent, the primary judge relied on the decision of the Full Court in Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582. In this case, however, the respondent faces the hurdle of s 485(1) of the Migration Act. That section goes beyond merely providing that the Court has no power of judicial review of judicially‑reviewable decisions other than the jurisdiction under Pt 8 of the Migration Act or on remitter under s 44 of the Judiciary Act. It provides that the Court "does not have any jurisdiction in respect of judicially‑reviewable decisions … other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903." It is clear that a "decision" in respect of which the Court has jurisdiction under Pt 8, invalid in the Leung sense (because, for instance, it was induced by fraud or because its maker lacked jurisdiction to make it), is nevertheless a "judicially‑reviewable decision". In my view, s 485(1) has the effect that the Court may not, in the course of dealing with an application to review the October decision, enter upon a consideration of the validity of the September decision. (The September decision might, of course, have been reviewed on an application made under Pt 8 within time.) The Court cannot set aside the September decision or declare it invalid. Having regard to the statutory considerations to which I have already referred, the Court can ignore it no more than the Tribunal could. 65 In my opinion, for the reasons I have given, the Minister has made out each of the three grounds of his amended application. The Tribunal erred in law by purporting to make a decision in respect of an application for review before it when it had previously made a decision in respect of the same application; similarly, having already decided the application, the Tribunal lacked jurisdiction to make the October decision; and the October decision was not authorised by the Migration Act. The remaining question is one of discretion. The learned primary judge held that, if he were wrong in concluding that the October decision was valid, the Minister's application for review of the October decision should nevertheless be refused on discretionary grounds. His Honour stated his reasons for that conclusion in par 30 and par 31 of his reasons for judgment: "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. 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."

It must, however, be a rare case indeed where the Court finds, on an application properly before it, that a decision was invalid for want of jurisdiction, but nevertheless refuses to set the decision aside. The discretion might be exercised to refuse relief in a case where the applicant's conduct was unreasonable or improper (see the discussion by Woodward J in Visy Board Pty Ltd v Attorney‑General (1983) 51 ALR 705 at 713). Excessive delay in seeking relief may also lead to its refusal, particularly in circumstances where the relief is likely to be futile: Excell v Harris (1983) 51 ALR 137 at 152 (Neaves J). But here there has been no particular delay and no improper or unreasonable conduct on the part of the Minister, and it cannot be said that the relief sought would be futile. What can be said - and his Honour said it strongly - is that the relief will deprive the applicant of the benefit of a decision, on the merits, favourable to him. But that, by itself, in my opinion is not a sufficient ground for refusing relief in circumstances where the decision‑maker lacked power to make the decision. In any event, it is perhaps fair to comment that the extent to which injustice would actually ensue is by no means clear: according to a letter to the Tribunal from the respondent's migration agent, the respondent commenced courses on 3 July and 6 July 1998 "and will finish by 30 June 2000".

66 For the reasons I have given, I would allow the appeal. I would set aside the orders made by the primary judge and would order instead that the decision of the Immigration Review Tribunal dated 22 October 1998 be set aside. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate: Dated: 15 June 2000 Counsel for the Appellant: Mr Robert Beech-Jones

Solicitor for the Appellant: Australian Government Solicitor

Migration Reform Act 1992(Cth)

Under the Australian Citizenship Act 1948(Cth)

At a glance

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