HIGGINS J:
23 This is an appeal from a decision of Finn J.
24 The appellant is a citizen of Ethiopia. He arrived in Australia on 4 March 1995. On 30 May 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs, pursuant to the provisions of the Migration Act 1958 (Cth) (the Migration Act). It was refused by a delegate of the Minister on 29 October 1997. On 28 November 1997, the applicant sought review of that decision, as permitted by the Migration Act, by the Refugee Review Tribunal (RRT). That review resulted in an affirmation of the original decision. That decision was dated 12 June 1998.
25 An appeal was, as the Migration Act permits, made to a single judge of this Court. Finn J heard it. On 14 April 1999, his Honour handed down reasons for judgment. The appeal was dismissed with costs.
26 On 5 May 1999 an appeal to the Full Court was instituted. That appeal was heard on 11 August 1999.
27 The sole ground of appeal relied upon by the appellant was that the Tribunal erred in failing to have regard to "new evidence" submitted on his behalf.
Sequence of events in relation to "New Evidence"
28 The appellant had supported his claims for protection by way of written submissions, an oral interview with a departmental officer, and then, by oral evidence given on 29 May 1998.
29 The matters thus advanced were relevant to determining whether the appellant had a well-founded fear of persecution so as to fall within Article 1A(2) of the 1951 Convention relating to the Status of Refugees (as amended). Those provisions are set out in the judgment of Finn J. It is not suggested that either his Honour, or the RRT, misapprehended or misconstrued those provisions.
30 The appellant is of Amharic ethnicity. He had come to Australia to engage in studies sponsored by the United Nations but administered from Addis Ababa. He was, between 1988 and 1995, employed by the Ethiopian Government as a senior expert in the Ministry for External Economic Co-operation.
31 He had suffered persecution under a previous, notoriously repressive regime known as "the Dergue" by reason of his then membership of the youth wing of the Ethiopian Revolutionary People's Party (ERPP). That regime was replaced in the late 1980's by the Ethiopian People's Revolutionary Democratic Front (EPRDF).
32 The EPRDF, he claimed, was dominated by Tigrean ethnic interests. It regarded former members of ERPP with suspicion. It had sought to restrict the free exercise of the Ethiopian Orthodox religion to which the appellant adhered. It had, after sending him to Australia on a UN scholarship, cut off his funds. He had, he said, expressed political opinions adverse to EPRDF.
33 Based predominantly on reports prepared by the Department of Foreign Affairs and Trade (DFAT), the Minister's delegate found that the appellant genuinely entertained a fear of persecution should he be returned to Ethiopia, but that those fears were objectively unsubstantiated.
34 It is necessary to consider the course of the challenge made to this finding before the RRT. The appellant was assisted in that challenge by Mr George Lombard, a registered migration agent.
35 On 28 April 1998, Mr Lombard forwarded a letter from an Ethiopian "friend and legal representative" of the appellant, together with a statement of the appellant. The appellant expressed his analysis of and fears concerning the EPRDF government. The appellant asserted that, just before his departure to study in Australia, he had been threatened with reprisals if he did not join EPRDF.
36 Mr Lombard wrote again on 28 May 1998, forwarding statements from Ms Kate Hayes of Fenner Hall (ANU) and Ms Jennifer Tode of Red Cross (ACT). The former deposed to the failure of the Ethiopian Government to pay the appellant's stipend, and the profoundly distressing effect it had on him both mentally and physically. The appellant's thesis was rejected thus ending his post-graduate studies. He seemed afraid to return to Ethiopia with a one-way ticket. In Ms Hayes' view, he had no support from and appeared abandoned by the Ethiopian Government. Ms Tode confirmed that the appellant had, apparently genuinely, expressed fears of returning to Ethiopia.
37 Those statements, whilst supporting the finding that the appellant had a genuine fear of persecution if he was returned to Ethiopia, did not add support to the view that his fear was well-founded. There was also forwarded an Internet report of the death of an opponent of the EPRDF regime, one Assefa Maru. That report was of doubtful provenance, though, no doubt, it fuelled the fears entertained by the appellant.
38 A person assisting the appellant, Ms Kerry Stewart of the Rehabilitation and Network Service ACT (TRANSACT), commented upon evidence given by the appellant to the RRT, constituted by Mr Brendan Kissane. That evidence was directed towards supporting the truthfulness of the appellant's account from a psychological perspective and to explain his perceived inability to convey his feelings "about his current situation and his fear of returning to Ethiopia".
39 The critical further correspondence followed after the appellant had given oral evidence to Mr Kissane. It comprised a letter from Mr Lombard dated 12 June 1998. It is date-stamped "RECEIVED 15 JUN 1998 REFUGEE REVIEW TRIBUNAL MELBOURNE". It was addressed to the Deputy Registrar of the RRT. It asserted that the appellant had had "a period of lucidity" and found himself able to write a further statement concerning the issues relevant to his refugee status. It is this statement which is said to have been the "new evidence".
40 The statement drew attention to the fact that the appellant had been employed during the last year of the Dergue in the bureaucracy of that regime. The appellant had been given the task of diverting aid funds to bolster the failing military might of the Dergue. At that time, part of the opposition to the Dergue was coming from the EPRDF. The role played by the appellant in supporting the Dergue regime could, he feared, have come to the notice of the EPRDF Government. As against that, of course, the appellant had on one occasion been detained and tortured by the Dergue as a result of his activity, though a decade before, in the youth wing of ERPP.
41 The appellant put forward the hypothesis that his adverse treatment by the Ethiopian Government, after his arrival in Australia was due to the discovery by EPRDF of his role in supporting the Dergue.
42 There had been an earlier letter from Mr Lombard. It was dated "June 1998" but the parties agreed it was 11 June 1998. It addressed the possible reasons for the appellant's dismissal from his government position and the associated cessation of his support from his government.
43 This letter contained a statement which speculated as to whether EPRDF "bosses" had identified the appellant as a "strong political opponent". Of course, as the appellant rightly agreed, his act of seeking a protection visa might itself place him in danger.
44 It is apparent from the Tribunal's reasons that neither of these statements were taken into consideration by Mr Kissane before he published his reasons for decision of 12 June 1998.
45 Mr Kissane was persuaded to reject the hypothesis that the appellant had been "abandoned" because of his former ERPP connections. He felt that:
"If the applicant were at any risk of adverse treatment from the current regime as a result of records held during the Dergue regime the Tribunal considers it would not have taken until 1996 for this to have been discovered."
46 It followed from that that Mr Kissane concentrated upon the treatment of ERPP activists by EPRDF, not its treatment of former Dergue collaborators. There was, in Mr Kissane's view, no persuasive evidence of serious adverse consequences from EPRDF directed to former or even current ERPP activists. Nor was religious persecution regarded as a likely source of the adverse consequences suffered by the appellant.
47 So far as Mr Kissane was concerned, there was nothing to displace the prima facie view that the appellant was dismissed from employment for failure to return to Ethiopia once his studies had terminated (albeit that the appellant attributed the termination of his studies to the failure to pay his living allowance).
48 It is apparent that the fear of discrimination amounting to persecution as a result of having been a collaborator with the Dergue was neither previously advanced nor, as a result, considered by the decision-maker.
49 It may be assumed that, had it been simply a case of the appellant seeking the Tribunal's indulgence to make a late submission, even raising a matter which would, usually, have been expected to have been raised earlier, the appellant, given his psychological and physical disabilities, would have had a reasonably arguable claim to that indulgence. That is not to say that it would have been a reviewable error to have declined to grant it.
50 Indeed, Mr Lombard had, out of concern for the appellant's worsening state of health, earlier urged expedition in the consideration of the appellant's case.
The making of the "Decision"
51 It was not contested that, on 12 June 1998, Mr Kissane signed his previously prepared reasons for decision. He then handed the signed decision to registry staff for dissemination and recording.
52 The further submissions were received at 4.39pm on that day. Although there is no indication as to whether those "further submissions" included the letter and attachment of 11 June 1998, they certainly included the letter and handwritten statement of 12 June 1998.
53 It is not clear what, if anything, the Deputy Registrar to whom the letter was addressed did with it and its attached statement.
54 On 16 June 1998 the RRT Registry staff produced two unsigned copies of the decision. One was for the applicant, the other for the Minister. The RRT's seal was affixed. The seal was dated "16 June 1998". The copy for the applicant was forwarded by letter dated 18 June 1998.
55 The parties do not suggest any error in the statement of principle adopted by Finn J in order to determine when, for the purposes of the application of the doctrine of "functus officio", a decision has been made. To quote his Honour, at par 19-20:
"19. For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.
20. What constitutes such an act can obviously vary with the setting in which the decision is made; it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision's having been made, etc."
56 His Honour then made reference to relevant provisions of the Migration Act. Section 430 sets out the procedure which is to be followed where the Tribunal "makes its decision on a review" (s 430(1)). It is unnecessary to set that provision out fully. It required a written statement of reasons to be prepared and then, within 14 days from when the decision is made, the RRT must "give" (s 430(2)) a copy to both the applicant and "the Secretary".
57 The right to review by the Federal Court depends on the lodging of an application to review such a decision "within 28 days of the applicant being notified of the decision" (s 478(1)(b)).
58 His Honour was also advised that the administrative processes within the Registry recorded the "final decision" as being dated "12/6/98". That, in his Honour's view, had the practical effect of identifying the date of the decision and set the date from which obligations consequential on the making of a decision arose. Thus, as at the time the "new evidence" was received, the RRT had already made its decision and was, therefore, functus officio.
The Submissions of the Appellant
59 The appellant submits that his Honour erred in finding that, by preparing and signing reasons for decision and delivering them to the RRT Registry, the RRT had become functus officio. He submits that the notification provisions of s 430(2) of the Migration Act, must be complied with before a decision can be said to have been made.
60 It is further submitted that a "decision" communicated to no-one else must be meaningless. It cannot be acted upon by those enabled or required to do so. A "decision" without reasons communicated would be "significantly incomplete".
61 This, it is suggested, mandates the conclusion that, to be validly made, a decision must not only finally conclude the matter to be determined but also be communicated to the parties affected by it, including the reasons for it.
62 Thus, until the decision was, on 18 June 1998, delivered to the appellant, it had not been "made". That date, of course, is after, not only 12 June 1998 when the "new evidence" was faxed to the RRT, but after 15 June 1998 when it was stamped as "RECEIVED" in the RRT Registry.
The Submissions of the Respondent
63 The respondent submits that, whilst the proximate issue concerns functus officio, the ultimate issue is whether the RRT had erred in law in promulgating its decision without considering the "new evidence". That legal error, it was submitted, even if made out, would not have constituted reviewable error by reason of s 476 of the Migration Act. In particular, reference was made to s 476(2):
"The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rule of natural justice occurred in connection with the making of the decision."
64 The High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, decided since Finn J's decision in this matter, held that a failure to act according to "substantial justice and the merits of the case" (s 420(2)(b)) did not, of itself, constitute a ground for review under s 476(1)(a); ie:
"that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed."
65 Thus, the respondent submits, it is not necessary to decide whether the ground for review relied on is made out if, in substance, that ground asserts that the decision was tainted by a breach of the rules of natural justice (s 476(2)(a)) or, even, if relevant, by unreasonableness (s 476(2)(b).
66 The respondent did not, however, resile from supporting Finn J's application of the doctrine of functus officio. Mr Howe for the Minister took issue with the appellant's counsel, Mr Erskine, on the question as to whether notification of the decision was an integral part of the process of making it.
67 Each party relied for support for his argument on the statement by Fox ACJ in Evans v Friemann (1981) 53 FLR 229, 233:
"The making of a decision by a person is a mental process, which may be communicated orally or in writing, or be apparent from action taken or not taken. The making of the decision might precede, by a very short, or by a long period, communication, or manifestation.
…
In ordinary usage, the special feature of a decision is its conclusiveness, or finality for the time being, and this is to be contrasted with the thought or consideration which precedes it. … For present purposes at least it seems to me to amount to something of significance which is reasonably definite, which is final and conclusive for immediate purposes at least, which is manifested in some way, which emanates from an authoritative or responsible source, and which materially affects another person or persons." (see 35 ALR 428, 431)
68 Also, each relied upon the remarks of Northrop J in Rice Growers Co-operative v Bannernan (1981) 56 FLR 443, 453 (1981) 38 ALR 535, 544:
"…there must be some overt act by which conclusions reached as a result of those thought processes are manifested. The manifestation may take many different forms. It may take the form of a verbal or written communication of the conclusion to the person affected. It may take the form of action taken to give effect to the conclusion. It may take the form of no action being taken when otherwise a definite action would have been taken."
69 Jayasinghe v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 532 highlights the importance of fixing the time at which a final decision has been made. The decision-maker is thereafter denied the power to re-consider a decision once finally made.
70 Whether a fresh application can be made, to the original decision-maker or otherwise, is a matter of statutory construction not presently relevant.
When was the decision made
71 The principle enunciated in the preceding decisions has been consistently applied. Their effect was summarised by French J in Attorney-General (Cth) v Queensland (1990) 25 FCR 125, 142:
"But a decision is more than thought, consideration or conclusion. It must be manifested in some way which emanates from an authoritative or responsible source."
72 Burchett J in Makisi v Minister for Immigration and Multicultural Affairs (1995) 37 ALD 420 pointed to the need for more than the mere formation of an opinion. The making of a decision based on an opinion formed may well be manifested by some action taken or refused in consequence of it.
73 That case and Schokker v Commissioner of Taxation (1998) 38 ATR 339, 98 ATC 4263 each involved a failure or refusal to make an administrative decision. In the latter case the "decision" not to take administrative action was manifested by a letter to the appellant.
74 The difficulty of inferring that a decision has been made from even lengthy inaction consistent with a decision not to act is illustrated by the case of Neal v Commissioner for Superannuation (1987) 6 AAR 532, 76 ALR 261; 13 ALD 460.
75 It follows from the above that I accept the submission of counsel for the appellant that there must be some overt act performed by the decision-maker putting it beyond his or her power to recall or change the decision thus made.
76 However, I agree with counsel for the respondent that delivery of written reasons for decision, together with notice of it, to the parties, though required by s 420(2), is recognised by the statute as an event following the making of the decision to which the reasons relate. It is not an integral part of the process of making the decision.
77 Whilst appeal rights do not commence to expire until delivery of reasons there must be a date before that upon which the decision was made so as to enliven the obligation to undertake the delivery of reasons which, in turn, causes the period for appeal to commence running.
78 The mere writing of reasons pursuant to an opinion the decision-maker expects to be final does not put it beyond the power of a decision-maker to change his or her mind. Nor, in my opinion, would the signing of a document incorporating such an opinion constitute the making of a decision. It is not beyond recall. No person apart from the decision-maker (and, perhaps, his or her personal staff) is aware that an opinion has been expressed. However, once that decision is published, even if not yet to the affected parties, it is made. After that point, it can be established objectively that the decision-maker has made that decision rather than another. Given the procedures adopted by the RRT, it seems to me that once the reasons for decision were delivered to and recorded in the Registry of the RRT, the decision was made. That is not to say that in a different statutory and procedural context, a decision might not be "made" though less formally recorded or notified.
79 That is enough to dispose of this appeal. On any view of it, the "new evidence" was received after the decision-maker, in understandable ignorance of its likely existence, had placed it beyond his power to come to any different decision.
80 In deference to the argument of counsel for the respondent, I will briefly refer to the effect of the High Court decision in Eshetu.
81 That case, coincidentally, concerned a claim for a protection visa by an Ethiopian national. The claim was based on arbitrary detention and torture which Mr Eshetu claimed to have experienced as a result of voicing opposition to the transitional EPRDF government. The Tribunal rejected that claim. It was unpersuaded as to its truth. Hill J had been unimpressed with the reasoning of the Tribunal in rejecting Mr Eshetu's evidence of his detention and torture and set aside its decision. On appeal to a Full Court, Whitlam J strongly disagreed with Hill J. He thought the Tribunal's conclusion to have been correct. However, that was a minority view. Davies J, with whom Burchett J agreed, found that a breach of s 420 left open a challenge to the decision made notwithstanding s 476(2). Thus, in Davies J's opinion, though breach of the rules of natural justice or of the duty to act reasonably is no ground for setting aside a decision, a failure, if egregious enough, might breach s 420 if the process was thereby to be characterised as not "according to substantial justice and the merits of the case". They upheld Hill J's opinion.
82 Gleeson CJ and McHugh J bluntly rejected that approach. In their Honours' view, s 420(2)(b);
"(589, par 51) …was intended to define the jurisdiction of the Federal Court in relation to judicial review of the Tribunal's decisions by excluding as a ground of review the ground relied upon by Mr Eshetu." (ie unreasonable or illogical reasoning)
83 However, it was also accepted by their Honours that the RRT's decision was not one which, though it might or might not be open to valid criticism, could be characterised as tainted by "Wednesbury unreasonableness".
84 Gummow J agreed with Lindgren J in Sun Zhan Qui v Minister for Immigration and Multicultural Affairs [1997] 324 FCA (6 May 1997); (reversed on appeal at 81 FCR 71; 151 ALR 505). Lindgren J had concluded that s 476(2)(a) was intended to limit the available grounds for review.
85 In the view of Gummow J it was not open to this Court to review such a decision on prerogative writ grounds by way of an alternative to the grounds available under the Migration Act, though the High Court, as Gummow J noted, could, in an appropriate case, do so under s 75 of the Constitution. Nevertheless, even so:
"[p 609, par 137] …where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way."
86 Although on one view of it, Mr Eshetu's account was not directly contradicted by any other evidence, there was "probative material" which supported its rejection.
87 Hayne J agreed with Gleeson CJ and McHugh J. Callinan J in a separate substantive judgment concurred with the majority, also agreeing with Lindgren J in Sun (supra).
88 In the present case, the most that can be said in criticism of the RRT decision-making process is that, due to some administrative error in the RRT's Registry, the further submissions and evidence of the appellant, putting a new case for being regarded as a person whose fear of return to Ethiopia was "well-founded", were not drawn to the RRT's attention.
89 That conduct cannot be characterised as a lack of good faith or a manifestation of bias. If it was "procedurally unfair", it does not go beyond the ground expressly excluded (by s 476(2)(a)) as a ground for review.
90 In any event, in my view, even apart from the fact that the RRT was then functus officio, it by no means follows that the RRT member, had he been informed that "fresh evidence" was being forwarded to the RRT, was obliged either to wait for or consider that further material before coming to and publishing his decision.
91 The RRT is exhorted by s 420(1) not only to be "fair" and "just", but also "economical, informal and quick". That would tend to suggest that the RRT is not bound to give repeated opportunities to an applicant to put forward his or her case. Of course, informality would not entitle the RRT to apply rigidly some sort of case management guidelines either (see eg. Queensland v JL Holdings Pty Ltd (1997) 189 (LR 146)). Nor to deny any genuine or effective opportunity to be heard (see Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339).
92 Nevertheless, this was not a case where a chance to place relevant material before the Tribunal was unreasonably declined. Even if it had been the denial of such an opportunity would, to be reviewable, have had to fall outside the excluded grounds for review whilst constituting a breach of s 420 or some other non-excluded ground for review.
93 The material forwarded was relatively brief. It may be that, had the RRT been aware it was coming, fairness would have required that it be considered before the decision was made. I express no concluded view as to that question. That is also a different question from a question as to whether a failure to consider such material, even in such circumstances, would have amounted to a reviewable error.
94 It is unnecessary to express a concluded view as to that question.
95 In my opinion the appeal must be dismissed with costs.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Higgins