Velitchko v Minister for Immigration & Multicultural Affairs

1993 (in or about Sep) The then Governor-General appointed Kerry Boland as a full-time member of the RRT for a period of three years.

(30 Oct) The then Administrator of the Government of the Commonwealth appointed Shunmugam Nganasamantham Chetty as the Principal Member of the RRT from 2 January 1996 to 2 January 2001.

(19 Mar) The Governor-General appointed Kerry Boland as a full-time member of the RRT from 31 March 1997 to 8 June 1997.

(28 May) The Governor-General appointed Kerry Boland as a full-time member of the RRT from 9 June 1997 to 9 June 2000.

(28 May) The Governor-General appointed Rory Hudson as a full-time member of the RRT from 9 June 1997 to 9 June 1999.

(16 Jun) The Governor-General appointed Adolfo Gentile as a full-time member of the RRT from 28 July 1997 to 28 July 2000.

(28 Jul) By instrument of delegation bearing this date, Shun Chetty, the Principal Member of the RRT, purported to delegate to full-time member Kerry Boland as a member of the RRT, certain powers pursuant to s 470 of the Act. A particular power mentioned was the power to "constitute cases to Melbourne Members".

(21 Oct) Dr Hudson published a "homepage" on the Internet. It contained certain observations about the credibility of applicants for protection visas.

(10 Nov) The Governor-General appointed Kerry Boland as a full-time Senior Member of the RRT until 9 June 2000, that is, the date when the term of her existing appointment as a full-time member of the RRT was due to expire.

(March) According to a later newspaper article, the Minister expressed concern at this time over the content of Dr Hudson's homepage and Dr Hudson heard of this and removed "the controversial Internet material".

(22 Apr) The applicants filed their application for review with the RRT.

(20 Oct) Senior Member Boland allocated the applicants' application (numbered V98/08606) to Dr Hudson.

(23 Dec) In an unrelated application to the Court for review of a decision of the RRT constituted by Dr Hudson, Ferati v Minister for Immigration and Multicultural Affairs (Heerey J, 23 December 1998, unreported), Heerey J set aside the decision on the ground that the content of Dr Hudson's homepage gave rise to "a clear case of apprehended bias" (his Honour did not think that the evidence showed actual bias) against Mr Ferati, with the result that the RRT had failed to act according to substantial justice and the merits of the case as required by s 420(2)(b) of the Act. (Heerey J referred to the decision of the Full Court of this Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 but that decision was later reversed by the High Court on appeal: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577).

(23 Dec or 24) Dr Hudson informed Senior Member Boland that he would "not continue to be available to determine any cases".

(24 Dec) Dr Hudson sent to the Governor-General a letter of resignation pursuant to s 466 of the Act "effective from c.o.b 1 February 1999" (s 466 provides that a member may resign by writing signed by him or her and sent to the Governor-General).

(24 Dec) Senior Member Boland held a meeting with the Deputy Registrar of the RRT at and of which she has given the following affidavit evidence: " … I allocated cases to Members. At the meeting, I directed that a number of cases allocated to Member Hudson be reallocated. At that meeting I directed that the Velitchko application known as RRT file V 98/08606 be reallocated to Member Gentile." Annexed to her affidavit is a document headed "RRT Case Load Report" and in respect of file V 98/08606 relating to Velitchko the following entry appears: "Member unavailable. Re-allocated to A Gentile on 4/1/99. [there follow illegible initials] 1999 (25 May) Member Gentile gave his decision on the applicants' application for review and published his reasons for decision. (22 Jun) The applicants filed their application in this Court for review of Member Gentile's decision. (18 Nov) With leave, the applicants filed an amended application for an order of review. (17 Dec) With leave, the applicants filed in Court a further amended application for an order of review. RELEVANT PROVISIONS OF THE ACT 5 The applicants submit that Principal Member Shun Chetty was not able to delegate to Senior Member Kerry Boland power to re-allocate their application to Member Gentile. Section 470 of the Act provides as follows: "The Principal Member may, by writing signed by him or her, delegate to a member all or any of the Principal Member's powers under this Act … " Sections 421 and 422 of the Act are of particular importance in the present case. They provide relevantly as follows: "421(1)For the purpose of a particular review, the Tribunal is to be constituted, in accordance with a direction under subsection (2), by a single member. (2)The Principal Member may give a written direction about who is to constitute the Tribunal for the purpose of a particular review." 422(1)If the member who constitutes the Tribunal for the purposes of a particular review: (a) stops being a member; or (b) for any reason, is not available for the purpose of the review at the place where the review is being conducted; the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review. (2) If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. (3) In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1)."

THE APPLICANTS' FURTHER AMENDED APPLICATION FOR AN ORDER OF REVIEW 6 Although the grounds on which the applicants came to rely are perhaps somewhat lengthy, I think it desirable to set them out in full as they convey the substance of the applicants' submissions made on the hearing. The grounds are stated in the further amended application as follows: "B The Grounds of the Further Amended Application (the Applicants having abandoned such grounds previously pleaded as are not set out below) are:- 1 Procedures required to be observed were not observed: S.476(1)(a) of the Act. Particulars (a) no written direction was given by the Principal Member as required by S.422(1) of the Act. (b) Ms. Kerry Boland did not issue a 'Direction' in terms of S.422(1). The Applicants dispute that the 'RRT Caseload Report Print-out' in evidence could constitute a 'Direction' pursuant to S.422(1). (c) Messrs. Ghetty [sic - "Chetty"], Hudson, Gentile and Ms. Boland were not properly appointed as members of the Tribunal: S.459 of the Act. (d) Dr. Hudson was not properly constituted to hear the Velitchko application:- (i) Ms. Boland had no power to appoint Dr. Hudson because she was not at the relevant time a member of the Tribunal; (ii) She did not have the power because it had not been properly delegated to her; (iii) In purporting to exercise the power she did not follow the procedures required by law; (iv) Following publication of his 'home page' in October 1997 Dr. Hudson ought not [to] have taken part in any Tribunal Review process. The Principal member and/or his delegate failed to comply with the provisions of S.460 of the Act. (e) Failure to reveal Dr. Hudson's conflict of interest: S.467 of the Act to the Applicants at any time until 7 December, 1999. 2 The Person who purported to make the decision (Mr. Gentile) did not have jurisdiction to make the decision: S.476(1) (b). Particulars (a) Mr. Gentile's appointment to the reconstituted Tribunal was invalid because Mr. Gentile was not a Member and his purported constitution by Ms. Boland was invalid. (b) When read in the context of the provisions of SS.458, 459, 460, 466, 468 and 469 of the Act, the Statutory Duty imposed upon the Principal Member by S.422(1) could not be delegated to Ms. Boland who therefore could not lawfully reconstitute the Tribunal by her purported appointment of Mr. Gentile. (c) The 'Instrument of Delegation' which purported to delegate authority to Ms. Boland was null and void and of no effect. (d) Absent a formal direction issued pursuant to S.422(1) by the Principal Member Mr. Gentile did not have the jurisdiction to make the decision instead of Dr. Hudson; (e) Ms. Boland did not issue a direction pursuant to S.422(1) of the Act. (f) The pre-conditions for reconstitution of the Tribunal had not been fulfilled when Mr. Gentile was appointed: S.422(1) of the Act. 3 The decision involved an error of law being an error involving an incorrect interpretation of the applicable law: S.476(1)(e). Particulars (a) The Tribunal as purportedly (but invalidly) reconstituted by Mr. Gentile wrongly believed that it had the power and/or jurisdiction to complete the Review commenced by Dr. Hudson. (b) Failure to act in accordance with the standards required by S.420 of the Act. (c) Failure to properly constitute the Tribunal: SS.420, 421, S.460(2); (d) Failure to follow the requirements of S.468(1)(h) of the Act. 4 The decision was induced or affected by fraud or by actual bias:- Particulars (a) The Minister knew or ought to have known prior to the Tribunal being constituted by Dr. Hudson that Dr. Hudson was not a fit person to hear the Velitchko matter without at least making to the Applicants the appropriate disclosure required by S.467 of the Act; (b) Instead the Minister caused the offending remarks to be removed from the public sphere. (c) The only purpose would have been to hide from the public in general and the Applicants in particular relevant facts which the Applicants were lawfully entitled to know at all relevant times: SS.467 and 420 of the Act. (d) The effect of the Minister's action was to convey to the public at large and to the Applicants in particular a false sense of confidence that the Tribunal was functioning as the Minister had led Parliament to believe in his Second-Reeding Speech the Tribunal would function when the Minister well knew that in this particular instance the standards set by S.420 of the Act and other provisions of the Act had been breached and would be further breached by the reconstitution of the Tribunal by Mr. Gentile. (e) The Minister by his statements to the Members of the Tribunal has unlawfully tried to influence members of the Tribunal as to their application of the relevant provisions of the Act. (f) The Minister's influence over the Members should be further assessed in the light of the provisions of S[S].464, 465 and 468(1) and 472 of the Act."

REASONING 7 There is no substance in the suggestion that at the relevant times Mr Chetty, Ms Boland, Dr Hudson and Mr Gentile were not properly appointed as members of the RRT. Copies of their instruments of appointment are in evidence. At the relevant times, Mr Chetty was the Principal Member, Ms Boland was a Senior Member and Dr Hudson and Mr Gentile were members of the RRT. 8 The instrument of delegation dated 28 July 1997 was signed by Principal Member Chetty and purported to be signed pursuant to s 470 of the Act and to delegate to Ms Boland, who was at that time a full-time member of the RRT, inter alia, power to "constitute cases to Melbourne Members". Although ss 421 and 422 do not use the expression "to constitute cases to [members]", I think that on its proper construction the instrument of delegation embraces the power which each section confers on the Principal Member in so far as it relates to "Melbourne Members". Both sections are concerned with the matter of the constitution of the RRT, in the one case for the purpose of a particular review initially and in the other case for the purpose of the finishing of a particular review where a member who constituted the RRT for the purposes of that review stops being a member or is not available for the purpose of the review at the place where the review is being conducted. 9 Accordingly, in my opinion it was within the power of Senior Member Boland to exercise, in relation to Melbourne Members of the RRT, the power given by s 422(1) of the Act to the Principal Member. 10 In relation to the purported "allocation" of the matter to Mr Gentile, the Minister does not rely on the RRT Case Load Report as itself a written allocation or direction. Rather, he submits that the allocation or direction was oral and that the relevant entry in the RRT Case Load Report records that oral allocation or direction. Subsection (2) of s 421 speaks only of a written direction whereas subs (1) of s 422 does not. I accept the Minister's submission that a direction by the Principal Member that another member is to constitute the RRT for the purpose of finishing a review is not required to be written. But even if I thought that it was required to be written, I would not hold that the fact that a direction was not written would lead to invalidity or the setting aside of a decision of a member who had been directed only orally to constitute the RRT for the purpose of finishing a review. I do not think that the legislature has exposed an intention that such a serious result is to flow in any case where a direction is not written but is oral. 11 Senior Member Boland, who was not cross-examined, has testified in her affidavit that on or about 23 or 24 December 1998, as a result of the Reasons for Decision of Heerey J in the Ferati case, Dr Hudson advised her that he was "unavailable to continue deciding cases and [that] it was agreed that even though his resignation would not take effect until 1 February, he would not continue to be available to determine any cases." This uncontroverted evidence established the ground on which the Principal Member's power given by s 422(1) became exercisable. 12 Subsection (1) of s 422 does not specify any particular form which the direction that must be given by the Principal Member is to take: it states merely that the Principal Member must direct another member to constitute the RRT for the purpose of finishing the review. I do not see why an oral direction by Senior Member Boland to be communicated by the Deputy Registrar of the Tribunal to Member Gentile does not satisfy the subsection. In her affidavit, Senior Member Boland testifies that she "directed" that a number of cases allocated to Member Hudson be re-allocated and that she "directed" that the Velitchko application, known as RRT file V 98/08606, be re-allocated to Member Gentile. The relevant entry in the RRT Case Load Report is consistent with Member Hudson's having become unavailable and with the matter having been re-allocated to Member Gentile. The date "4/1/99" in the Case Load Report is perhaps the date when the file was actually delivered to Member Gentile after the Christmas/New Year break. 13 The applicants submit that Principal Member Chetty or his delegate Senior Member Boland failed to comply with the provisions of s 460 of the Act. I presume that the part of s 460 relied on is that which provides that the Principal Member is responsible for monitoring the operations of the RRT "to ensure that those operations are as fair, just, economical, informal and quick as practicable". In my view this provision does not lay down a procedure required to be observed in connection with the making of the RRT's decision for the purposes of s 476(1)(a) of the Act: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 which dealt with a similar provision contained in s 420 of the Act. 14 In further support of the ground specified in s 476(1)(a), the applicants rely on s 467 of the Act which provides that a member of the RRT who has "a conflict of interest in relation to a review" must make disclosure and must not take part in the review or exercise any powers in relation to the review unless certain conditions are satisfied. But subsection (2) of s 467 provides as follows: "For the purposes of this section, a member has a conflict of interest in relation to a review by the Tribunal if the member has any interest, pecuniary or otherwise, that could conflict with the proper performance of the member's functions in relation to that review." It is not shown that Dr Hudson had any interest that could conflict with the proper performance of his functions in relation to the review in the Velitchko matter. 15 Although I have not addressed all of the various paragraphs of particulars of grounds 1, 2 and 3 of the further amended application separately, I will be found, in fact, to have dealt with all of them in the foregoing reasons. 16 It remains only to deal with the fourth ground - that the decision was induced or affected by fraud or by actual bias. In my view there is no substance in this ground. 17 Ground 4 attacks the conduct of the Minister. The most that can be said is that, according to a newspaper article, the Minister expressed concern over the content of Dr Hudson's homepage and someone relayed the Minister's concerns to Dr Hudson who removed the controversial material from the Internet. There is no evidence that the Minister interfered with the functioning of the RRT or that, for example, he directed Dr Hudson to remove the controversial material from his homepage. If the Minister expressed concern, he was perfectly justified in doing so as the Reasons for Decision of Heerey J in the Ferati case show. If someone communicated to Dr Hudson the fact that his homepage gave cause for concern, that person is to be commended rather than criticised in my view as, again, Heerey J's reasons in Ferati suggest. The same can be said of Dr Hudson in relation to his apparently prompt removal of "the controversial material" from the homepage. There is simply no substance to any of the particulars of fraud or actual bias. 18 In the result the application will be dismissed. 19 Counsel for the Minister submits that the filing of the application, the amended application and the further amended application constitutes "nothing more than a desperate attempt on the part of the applicants' legal advisers to identify a deficiency in the administrative process which resulted in Mr Gentile hearing the case." He seeks an order that the applicants' legal representatives pay the Minister's costs "as a result of an application pursued in the absence of proper grounds." 20 While some of the matters argued, in particular the grounds of fraud and actual bias, have no substance, there were arguable issues as to whether the requirements of ss 421, 422 and 470 were complied with. Indeed, the RRT might consider the desirability, in the interests of administrative efficiency and record-keeping, of ensuring that directions under s 422 as well as those under s 421 are written. I note that a more formal procedure was followed in Chopra v Minister for Immigration and Multicultural Affairs (Lockhart J, 5 December 1997, unreported), than was followed in the present case. 21 Little time was spent on Ground 4 and on the less significant particulars of Grounds 1, 2 and 3. 22 In the circumstances I will make only the usual order for costs, that is, that the applicants pay the respondent's costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Solicitor for the Respondent: The Australian Government Solicitor

Date of Hearing: 9 November, 17 December 1999