Quan v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 In this matter the applicant appeared in person at the directions hearing before the Registrar with her brother. However, there being no interpreter the Court was assisted by a representative of a commonly employed migration service in these cases, who spoke Mandarin, to explain to the applicant what occurred at the directions hearing. I am quite satisfied that the applicant knew that the matter was listed for hearing today. 2 There are arguable difficulties about the way in which the Refugee Review Tribunal ("the Tribunal") approached this matter, but the circumstances are not such as to provoke me, as sometimes happens, into exploring in effect, the case for the applicant with counsel for the respondent Minister. 3 I will however mention one matter of concern. About three days before the date the applicant had been notified as the day upon which the Tribunal would deliver its decision, the applicant via an interpreter asked an officer of the Tribunal whether she could submit some further documents. I interpolate that she had earlier asked that the hearing be postponed because she claimed to have lost documents and would need some time to replace them, but that request had not been acceded to. In answer to her inquiry, the officer advised the applicant that she could submit the documents but that it would be in the Deputy Registrar's discretion whether these documents would be taken into account. No further document was submitted and, from the viewpoint of the applicant, I do not think that the advice given to her dissuaded her from lodging any document that she wished to lodge and have taken into account. 4 However, the advice given to her was clearly wrong. In Semunigus v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 533 the majority of a Full Court of this Court made it clear that it is within the discretion of the Tribunal, that is the member of the Tribunal dealing with the matter, to receive further material right up to the time of actual publication of the decision. I further explained this in Akand v Minister for Immigration & Multicultural Affairs [2000] FCA 626 as did Merkel J in Inderjit Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73. There is a world of difference between a member of the Tribunal, who is being required truly to understand the matter fully for himself or herself, dealing with a request to receive further materials, and a subordinate officer doing so. The Tribunal member is in a position fully to appreciate the significance and weight, if any, to be accorded to the intended materials, having regard to the Tribunal member's own approach. Anybody else is plainly not well placed to be able to do so. 5 In any case, if this practice is occurring, it is illegal. There is no power on the part of a Tribunal member to delegate to somebody else what may be an important matter incidental to the proper carrying out of the review function which the Tribunal members, and they alone, are charged with performing. Section 472(3) of the Act provides that the Registrar and other officers of the Tribunal are to have: "(a) such duties, powers and functions as are provided by this Act and the regulations; and (b) such other duties and functions as the Principal Member directs." Nothing in the Act or the regulations constitutes any part of the Tribunal's review function as a duty, power or function of a Tribunal officer (cf. reg 4.36 as to officers duties, powers and functions), and there would at least be doubt as to whether the regulations could do so. Whether to receive material that may affect the consideration of an application for review is plainly an integral part of the review process. Likewise the Principal member's powers to direct that officers are to have certain additional duties and functions would not extend to such a matter. 6 I comment on this in the hope that perhaps, after the fourth time this Court has had occasion to refer to the matter, an understanding of it will generally permeate through the Tribunal and its staff. Non-observance of the views of the Court could conceivably give rise to a successful application for judicial review either in this Court or in the High Court. It appears imprudent, if nothing else, that the Tribunal should court the risk of a costs order against it in such a case. 7 Otherwise, the decision of the Tribunal is legally supportable on its face, despite possible arguments, in a way which would deny the applicant relief in this Court. The applicant has not appeared, and this follows a course of apparent abandonment of hope in the review processes which she initiated. It is appropriate that her application be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.