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When is a merits review tribunal functus officio?

This case note explores the recent decision of the Full Court of the Federal Court of Australia ('FCFCA') in Minister for Immigration and Citizenship v SZQOY. (1) It considers issues relating to the point at which a merits review tribunal 'makes' a decision, such that it becomes, or may become, functus officio. Particular mention is made of the practical implications of the decision for the Refugee and Migration Review Tribunals and its potential application to other administrative decision makers.

I THE FACTS

The first respondent (hereafter 'the respondent'), a Nepalese citizen, arrived in Australia on 12 September 2008 as the dependant spouse of an overseas Nepali student. (2) On 17 January 2011 the respondent lodged an application for a protection visa claiming a well-founded fear of persecution as a result of, amongst other things, her inter-faith relationship. (3) The application was refused (4) and the respondent subsequently sought review of the primary decision in the Refugee Review Tribunal ('RRT'). (5) The presiding Member ('the Member') (6) affirmed (7) the decision of the delegate of the appellant ('the Minister'). (8) The procedural events leading up to the RRTs decision, which form the basis of the subsequent appeal to Full Court of the Federal Court ('FCFCA'), are as follows:

A Communication between the RRT and the respondent

On 15 June 2011, the respondent attended a hearing at the RRT, whereupon she was invited to provide further written submissions. (9) Such submissions were provided to the RRT along with a request to make further submissions at an additional interview or hearing. (10)

On the morning of the 27 July 2011 an officer, acting on behalf of the RRT, contacted the respondent's solicitor to notify the respondent that the RRT did not propose to hold another hearing, but that the Member would consider further written submissions up until the decision was 'made.' (11) At 4:57pm the respondent's solicitor sent the RRT a letter by facsimile enclosing two additional documents. (12)

B The internal procedural steps taken by the RRT

At 2:34pm the Member electronically transmitted his written decision (13) to the RRT Registry (14) were it was recorded in the online case management system, Casemate. (15) The RRT subsequently received the respondent's facsimile and forwarded it to the Member who advised that a decision had been made before the letter was received. (16) As such the Member would not re-open the respondent's case as the RRT was functus officio and without the power to take further action on review. (17) The case was finalised in Casemate at 6:39pm and a notification was subsequently sent to the Department of Immigration and Citizenship. (18)

The respondent sought judicial review of the Tribunal's decision in the Federal Magistrates Court ('FMCA') on the grounds that it was affected by jurisdictional error. (19) In support of the application for review the respondent raised a number of grounds all of which were rejected. (20)

The crucial consideration on appeal, which was raised by the appellant during the FMCA hearing, was whether the RRT had committed a jurisdictional error in considering that it was functus officio from the moment the Member electronically transmitted to the RRT Registry his written decision, with a view to that decision being communicated to the effective parties to the review. (21)

II INITIAL FINDINGS IN THE FEDERAL MAGISTRATES COURT

At first instance Cameron J held that the Tribunal's decision was affected by jurisdictional error (22) as the RRT was not functus officio at the time the facsimile was received (23) and as such the Member ought to have considered the additional material. (24)

In reaching this decision his Honour considered the construction of s430(2) (25) and whether, upon a proper reading of the section, it supported the Ministers contention that the section determines not only when the time limit on judicial review commenced, but also when a valid decision of the Tribunal takes legal effect and is incapable of recall or reconsideration. (26) Such a construction, which finds support in the decision of Smith FM in SZQCN v Minister for Immigration & Citizenship, (27) would render a decision of the RRT final from the first moment of the day on which the decision is dated. (28) As a consequence, the RRT would be functus officio at the moment the Member conveyed the decision to the Tribunals Registry for publication. (29)

In rejecting this construction, Cameron J drew on the historical context of s 430 and the express legislative intent of parliament. His Honour dismissed the implicit argument advanced in SZQCN that s 430(2) by reason of analogy to s 430B(4), (30) the sections predecessor, function was to identify when the Tribunal was functus officio. (31) Such an argument presupposed that s430B and its subsections preformed such a function whereas in actuality s 430B merely provided for the handing down of the Tribunal's decision at a specified time and place by particular methods. (32) As such Cameron J held that there was no basis to assume that s 430(2) performed such a role. (33)

Cameron J also noted the reliance placed on the revised explanatory memorandum in SZQCN which his Honour considered provided only a portion of the whole story. (34) Under the original explanatory memorandum the amendment to s 430(2) were expressly linked (35) to other proposed amendments that concerned the time limits on review applications to the High Court, the Federal Court and the FMCA in migration matters. (36) While these amendments were subsequently removed from the amendment bill introducing s 430(2) and thus do not appear in the revised explanatory memorandum, (37) his Honour considered that parliament's intentions in introducing the amendments, including s 430(2), was to provide a simpler procedure for notification of Tribunal decisions to applicants concerned with the commencement of the limitation period. (38) As such s 430(2) serves no higher purpose than giving precision to what is to be the date of the decision when the RRT avails itself of alternative notification procedure. His Honour considered there to be no intention for the provision to be used to determine when the Tribunal was functus officio (39)

In the absence of any specific provision governing the time, Cameron J considered that Tribunal would become functus officio when the decision reached a point that is beyond recall. (40) His Honour noted Madgwick J and Spender J observations in Semunigus v Minister for Immigration & Multicultural Affairs (41) that a decision was not beyond recall until it had been sent to the applicant or the Minister.

On the facts, his Honour inferred that, the Member could have recalled his decision at any point prior to its despatch as although the decision had been electronically transmitted to the RRT registry with a view to being published the Member could have overridden this electronic instruction (42) as it was not an automated and irreversible process but one effected through the actions of a Tribunal officer. As the final step of transmitting the decision to the parties was not undertaken until after the facsimile was received by the Tribunal, Cameron J held that the RRT was not functus offico and the Member erred in concluding otherwise. (43)

III FULL COURT OF THE FEDERAL COURT

The Minister appealed and the matter was heard before Buchanan, Logan and Barker JJ in the Full Court of the Federal Court ('FCFCA'). On appeal, the central issue was whether the FMCA erred in finding that the RRT committed a jurisdictional error by considering that it was functus officio at the time when the additional documents were received. (44)

Their Honours, in dismissing the appeal, delivered separate reasons with Barker and Logan JJ in general agreement with Buchanan J.

A Buchanan J

Buchanan J endorsed the FMCA decision (45) and in so doing rejected the appellants claim that the RRT had completed its review of the decision when the Member's written statement of reasons was internally communicated to the RRT registry. (46) In his Honours view such a conclusion would not only give this aspect of the internal procedures of the RRT a finality and legal significance which is unjustified, by reference to the statutory framework and relevant legal principles, (47) but would require that the decision and reasons of the Member be incapable of recall, revision, amendment or reversal during the intervening period prior to the notification of the effective parties. (48)

Like Cameron J, his Honour endorsed the reasoning of Madgwick J (49) in Semunigus holding that as a matter of administrative necessity in certain circumstances, such as where there has been a development in the law or the emergence of a critical fact, recall or amendment of a decision (and the reasons for it) may be appropriate. Thus while the RRT is not bound to accept new material, in such circumstances, the RRT retains the legal authority to do so. (50)

Ultimately his Honour considered that for a decision to be final that the decision maker must be precluded from revisiting the decision at his or her option. (51) As there was no evidence or statutory provisions to suggest that it was beyond the Members power to recall the decision sent through the electronic case management system the RRT made a jurisdictional error to the extent that it concluded that it was. (52)

B Logan J

Consistent with Buchanan J position, Logan J considered the RRT's decision to be beyond recall by the Member only when it was 'manifested to the applicant for review, the Secretary and the Minister's department by some overt act.' (53) Before that point the Member is entitled to reconsider a decision and countermand a direction to the RRT Registry to record and send out a copy of an earlier version of that Member's decision. (54)

Likewise, his Honour held that the Member was entitled to consider the additional submissions and to conclude otherwise constituted a jurisdictional error. 55 In reaching this conclusion, Logan J noted that it was not necessary to consider whether the RRT was obliged to consider the additional submissions. (56)

C Barker J

Barker J indicated that a decision would reach the crucial point of being beyond recall when it was communicated to the appellant, and probably the secretary. (57) Upon receipt of the reasons the parties are in a practical position to take advantage of their rights to make an application under s478 of the Act. (58)

His Honour also considered the underpinning public policy considerations in re-opening decisions. (59) In weighing these considerations Barker J highlighted the underlying purpose of the review process, that being to ensure that good and fair decisions are made in the course of the public administration of the Act, holding that while finality is important in the decision making process it does not constitute a compelling reason why the RRT should not be able to recall the decision before it has been externally communicated given the greater countervailing need for flexibility to correct any error (e.g. legal error or possible injustice). (60)

IV IMPLICATIONS

A Clarification and practical implications

The FCFCA judgment is significant to the extent that it provides clarification and guidance to Members as to when a decision is final. Prior decisions from the Full Court and the Federal Magistrates Court were unclear in this regard, with some authorities suggesting that the mere internal transmission of a decision to the registry would be sufficient. In holding that a decision is final where it has been communicated irrevocably and externally to effective parties, including at least the applicant to the review, the FCFCA has resolved this uncertainty.

The decision has significant practical implications for the Refugee and Migration Review Tribunals, and potentially for administrative decision makers outside the migration context.

Firstly, the FCFCA judgement empowers the Tribunal to consider material tendered by the applicant, which might reasonably affect the RRT's view as to what would be the correct or preferable decision, up until the decision is externally communicated to effective parties. While the Tribunal may or may not be under a further obligation to consider the material received, it does have the legal authority to do so. Moreover, if the Tribunal declines to consider additional material on the incorrect view that it is functus officio at the time it receives the material that will constitute a jurisdictional error.

Secondly, the Full Court judgment allows Tribunal Members to revisit their own decision even through that decision may have been finalised and communicated to the registry. From a public policy stand point this is particularly significant given that the RRT is exhorted by s 420(1) to be 'fair' and 'just', but also 'economical, informal and quick.' With high volumes of applications for review passing through the Refugee and Migration Review Tribunals and the pressure to make speedy decision, there is as recognised by Barker J, an increased risk of errors occurring. Thus there is a practical need for the power to reopen and reconsider decisions, which the FCAFC judgement to some extent provides for.

B Boarder Implications

The decision in SZQOY has the potential to be applied more broadly with some suggesting that the Full Court's reasoning could be applied to the decision making regime under which primary decisions of the Minister and his or her delegates are made. (61) Application of SZQOY outside of the migration context to other administrative decision makers may be possible depending on the particular statutory framework under which the decision maker operates. (62) Such application would be on a case to case basis.

Portia Tyle, Fourth year law student, University of Queensland.

(1) Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 (12 September 2012).

(2) Ibid [2].

(3) Ibid; SZQOY v Minister for Immigration & Anor [2012] FMCA 289 [6]-[7]: The grounds on which the respondents claims for protection are based related to her (a) inter-faith relationship; (b) out of wedlock pregnancy and purportedly coerced abortion; (c) family violence; (d) single status and lack of protection from male relatives; and (e) pro-monarchy political views.

(4) Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 [3].

(5) Ibid; See generally Migration Act 1958 (Cth) ('the Act') s457 (Establishment of the RRT), s 411 (Decisions reviewable by Refugee Review Tribunal) and s 414 (RRT must review decisions).

(6) See generally Migration Act 1958 (Cth) s 458 (The RRT consist of a Principal Member and other Members).

(7) Migration Act 1958 (Cth) s 415(2) (The RRT may affirm, vary, set aside and substitute a new decision, or remit the matter for reconsideration).

(8) SZQOY v Minister for Immigration & Anor [2012] FMCA 289 [8] (The Tribunal's decisions and reasons).

(9) Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 [7].

(10) Ibid

(11) Ibid [8]-[9] (The officer in question advised the respondents solicitor that such a decision could be made at any time and indicated that any additional submission ought to be made as soon as possible).

(12) Ibid [10] (The documents consisted of a short statement by a Nepali gynaecologist and a letter from the respondent's aunt).

(13) See generally Migration Act 1958 (Cth), s 430 (The RRT is required to prepare a written statement which sets out the decision, the reasons for the decision, its findings on any material questions of fact, and references to the evidence or other material on which the findings of fact were based).

(14) See generally, Migration Act 1958 (Cth), s 472 (Officers of Tribunal).

(15) Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 [14]-[15].

(16) Ibid [12] (The Members decision was communicated by the RRT Registry to the Respondents solicitor).

(17) Ibid.

(18) Ibid [14]; see generally Migration Act 1958 (Cth), s 430A (The RRT is required to notify the applicant of its decision by giving the applicant a copy of the written statement within 14 days of the date that the written statement setting out the decision bears. A copy of the written statement must also be given to the Secretary of the Department of Immigration and Citizenship).

(19) SZQOY v Minister for Immigration & Anor [2012] FMCA 289 [3]; see generally Migration Act 1958, s474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

(20) SZQOY v Minister for Immigration & Anor [2012] FMCA 289 [10] (The grounds raised included the denial of procedural fairness [13]-[14]; the lack of a 'generous heart' [16]; ignoring claims and making findings without evidence [17]-[18]; failure to have regard to relevant material [19]-[20]; overbearing questioning [21]; basis in factual findings [23] and taking irrelevant consideration into account [22]).

(21) Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 [4]-[5].

(22) SZQOY v Minister for Immigration & Anor [2012] FMCA 289 [45].

(23) Ibid [43]-[44].

(24) Ibid [44], [46] (The FMCA ordered that the Tribunal's decision be set aside and the matter remitted to be determined according to law).

(25) Migration Act 1958 (Cth) s 430(2) (provides that 'a decision on a review (other than an oral decision) is taken to have been made on the date of the written statement. ...').

(26) SZQOY v Minister for Immigration & Anor [2012] FMCA 289 [27].

(27) SZQCN v Minister for Immigration and Citizenship [2011] FMCA 606 ('SZQCN') [65] and [57].

(28) SZQOY v Minister for Immigration & Anor [2012] FMCA 289 [28].

(29) Ibid.

(30) Migration Act 1958 (Cth) s 430B(4) (provided that 'the date of the decision is the date on which the decision is handed down.').

(31) SZQOY v Minister for Immigration & Anor [2012] FMCA 289 [31].

(32) Ibid.

(33) Ibid.

(34) Ibid [33].

(35) Ibid [34].

(36) Migration Act 1958 (Cth), ss 477, 477A and 486A.

(37) SZQOY v Minister for Immigration & Anor [2012] FMCA 289 [36] (These sections were removed due to (1) concerns that they would not operate appropriately and (2) the desire to reinstate effective time limits for all judicially reviewable decisions).

(38) Ibid [41] (Prior to the Migration Legislation Amendment Act (No 1) 2008, the Migration Act 1958 required that the RRT's decision be "handed down" which required the applicant and the Secretary be invited to be present at a time when the Member constituting the RRT would announce the decision orally. Under the changes an alternative to oral notification was provided.); See generally Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 (Held that under the Migration Act, as it then stood, hand delivery was the sole effective method of notifying an applicant of a written decision of the Tribunal which rendered the time limit 'virtually ... nugatory.').

(39) Ibid [32].

(40) Ibid [43] quoting Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240 ('Semunigus').

(41) Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240 [13] (Spender J), [75] and [78] (Higgins J) and [103] (Madgwick J).

(42) SZQOY v Minister for Immigration & Anor [2012] FMCA 289 [43].

(43) Ibid [44].

(44) Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 [1].

(45) Ibid [18], [17] quoting SZQOY v Minister for Immigration & Anor [2012] FMCA 289 [43]-[44].

(46) Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 [22].

(47) Ibid.

(48) Ibid [23].

(49) Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 [102]-[103] (established by Madwick J), [12] (echoed by Spender J) and Cf [78] (Higgins J-Once a decision is published, even if not yet to the affected parties, it is made as it can be objectively established that the decision-maker has made one decision rather than another.) See also Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 [29] (Buchanan J rejected Higgins J's observations as (1) wrong as a matter of legal principle and (2) not applicable to the facts of the present case).

(50) Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 [24] (The RRT is bound to receive new material up to the date of a decision, or that it should reasonably have done so in this case).

(51) Semunigus v The Minister for Immigration & Multicultural Affairs. [1999] FCA 422 [19] (Finn J).

(52) Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 [29].

(53) Ibid [34].

(54) [40].

(55) [45].

(56) Ibid (See, similarly, Logan J at [56] and Buchanan J at [24]).

(57) [57].

(58) Ibid [57].

(59) Ibid [58].

(60) Ibid.

(61) Lenny Leerdam, When are the Refugee and Migration Review Tribunals functus officio? (14 September 2012) DLA Piper < http://www.dlapiper.com/australia/tribunals-functus-officio/> (It was noted that such application is unlikely in the context of primary decision makers given the general availability of merits review).

(62) Ibid.
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Author:Tyle, Portia
Publication:University of Queensland Law Journal
Article Type:Case note
Date:Jul 1, 2013
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