Kaur v Minister for Immigration

[2010] FMCA 822

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 822

MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 359A, 360, 360A, 362, 362B, 368, 379A, 379C, 379G, 426A, 432

Migration Regulations 1994 (Cth), cll.572.222, 572.231 of Schedule 2

“CCC” v Minister for Immigration & Multicultural Affairs [2001] FCA 682
Chandler v Alberta Association of Architects [1989] 2 SCR 848; [1989] 6 WWR 521
Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML and Another (2006) 154 FCR 572; [2006] FCAFC 152
Paper Machinery Ltd. et Al. v. J.O. Ross Engineering Corp. et Al. [1934] SCR 186
SZHSQ v Minister for Immigration and Multicultural Affairs and Another (2006) 155 FCR 159; [2006] FCA 1295
SZJQP v Minister for Immigration & Citizenship [2007] FCA 1613
SZLPH v Minister for Immigration & Citizenship [2008] FCA 744
SZMKN v Minister for Immigration & Anor [2009] FMCA 954

Applicant: VARINDER KAUR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG445 of 2010

Judgment of: Barnes FM

Hearing dates: 19 August 2010, 30 September 2010

Delivered at: Sydney

Delivered on: 30 September 2010

REPRESENTATION

Solicitors for the Applicant: Newman & Associates

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $4,900. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG445 of 2010

VARINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal dated 3 February 2010 affirming a decision of the delegate of the first respondent not to grant the applicant, Ms Kaur, a Student (Temporary) (Class TU) visa.

2. The applicant, a citizen of India, arrived in Australia in 2007 as the holder of a student visa.  In 2008 she applied for a further student visa.  Her migration agent provided the Department of Immigration with documents including a Confirmation of Enrolment, an Offer of Course Placement for a Diploma of Business Administration course at Inter-Continental Colleges starting in October 2008, an IELTS test result showing an overall band score of 5, as well as evidence of completion of an English for Vocational Education course and a Commercial Cookery course.

3. The delegate of the first respondent refused the application, finding that Ms Kaur did not meet the criteria in Part 572 of Schedule 2 to the Migration Regulations 1994 (Cth) in relation to evidence of her English language proficiency.

4. The applicant sought review by the Tribunal.  Relevantly, in her application for review she provided the Tribunal with details of a migration agent as her nominated representative and indicated that she wanted all correspondence sent to that person as her authorised recipient. 

5. On 1 April 2009 the agent notified the Tribunal of a change of contact details.  The applicant completed a fresh Appointment of Representative and Authorised Recipient Form dated 31 March 2009 which provided up-to-date contact details for her authorised recipient and again stated that she appointed that migration agent to act as her representative and authorised recipient. 

6. The Tribunal sent a letter dated 14 January 2010 to the person nominated as the applicant’s authorised recipient at the facsimile number that had been provided in the Form dated 31 March 2009, enclosing documents inviting the applicant to a hearing.  The letter advised that by providing the authorised recipient with the documents the Tribunal was taken to have given the documents to the applicant and that he should ensure that she was informed of the invitation as soon as possible.

7. The material in the Court Book includes a Tribunal document headed “Transmission Log” for 14 January 2010 which indicates that the facsimile was sent by the Tribunal to the facsimile number provided for the migration agent.  The status of the facsimile transmission is recorded as “OK”. 

8. The applicant did not attend the Tribunal hearing. 

9. In its reasons for decision the Tribunal set out the applicable criteria in relation to a Subclass 572 visa (that being the only subclass of student visa in respect of which any claims had been advanced by the applicant), in particular the requirements in relation to English language proficiency and evidence of enrolment in a course of study at the time of decision.  Specific reference was made to cl.572.222 which requires evidence of enrolment in a course of study and cl.572.231 which requires that the applicant be enrolled in or the subject of a current offer of enrolment in a course of study. 

10. Because of the nature of the grounds relied on in these proceedings it is necessary to set out paragraph 12 of the Tribunal decision (as stated on 3 February 2010) that appears under the heading “Claims and Evidence” in full:

    In a letter dated 14 January 2010 posted to the applicant at the last address for service provided by the applicant in connection with the review, the applicant was notified that the Tribunal was unable to make a decision in her favour on the material before it.  The applicant, accordingly, was invited to attend a hearing of the Tribunal to give oral evidence and present arguments in support of her claims.  The hearing was scheduled for 2 February 2010.  The applicant was advised that if she failed to attend the scheduled hearing or did not contact the Tribunal to seek a postponement of the hearing, the Tribunal might make a decision on her case without further notice.  The Tribunal is satisfied that the hearing invitation letter was dated and dispatched by registered prepaid post within three working days of 14 January 2010, the date of the document.  The applicant did not appear before the Tribunal on the day and time and place which she was scheduled to appear.  The applicant did not attempt to contact the Tribunal after the hearing date had passed offering an explanation for her absence or seeking a hearing.  In these circumstances, pursuant to s.362B, the Tribunal is satisfied that it has discharged its obligation to give the applicant an opportunity to appear before it to give evidence and has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

11. The Tribunal then referred to the documents that had been provided by the applicant and the absence of any further evidence relating to her English language proficiency and evidence that she was currently enrolled in or was the subject of a current offer of enrolment in a course of study.

12. It had regard to the fact that the Confirmation of Enrolment that had been provided in connection with the visa application related to a course that started in October 2008 and was to end in October 2009 and that there was no evidence that the applicant was currently enrolled in or the subject of a current offer of enrolment in a course of study.  It stated that “[i]f the applicant had attended the hearing, the Tribunal would have made inquiries about whether she was [currently] enrolled in” a course and “whether she had evidence that she met the [applicable] English language proficiency” requirements.  In the absence of evidence of current enrolment or a current offer of enrolment the Tribunal was “unable to determine the subclass of the visa” or the assessment level applicable. 

13. The Tribunal concluded that on the evidence before it it was not satisfied at the time of the decision that the applicant was enrolled in or was the subject of a current offer of enrolment in a course of study that was a principal course.  It found that the applicant did not meet an essential requirement of cl.572.231 and that there was no evidence on which it could be satisfied that she met the criteria for any of the other subclasses in a Class TU visa.  The Tribunal affirmed the decision not to grant the applicant a Student visa. 

14. The Tribunal decision of 3 February 2010 was sent by registered post to the applicant care of her authorised recipient. 

15. The Court Book contains a document headed “Case Note” which refers to the applicant.  It bears a date of 9 February 2010, a time of 9.52 am and described as an “Enquiry by Phone”.  It is as follows:

    8/2/10 Suraj from the Representative’s office called to query the Tribunal decision stating that paragraph 12 referred to the hearing invitation letter being despatched on 14 Jan 2010 by registered post.  Suraj said that his office never rec’d a Hearing notification letter.  After checking the Tribunal file I confirmed that with Suraj that this sentence was in fact incorrect as the letter was sent by fax not registered post.  I informed him that the letter was faxed on the (sic) 14 January 2010 and the fax confirmation transcript indicates that the letter was faxed to their office successfully.  I stated that the Tribunal would issue a Corrigendum pertaining to error in paragraph 12 but that the Tribunal record indicates that the hearing letter was faxed correctly and successfully to their office.  Corrigendum issued accordingly

16. On 9 February 2010 the Tribunal again wrote to the applicant’s authorised recipient by letter addressed to the same facsimile number, enclosing a letter to the applicant and a corrigendum to the Tribunal’s decision of 3 February 2010.  The letter explained that this was a “correction to the text of a decision” which did “not change the reasons or outcome of the Tribunal’s decision”. 

17. The corrigendum is on the letterhead of the Tribunal.  It contains details of the applicant’s matter, including the name of the Tribunal member, date of decision (3 February 2010) and the date the corrigendum was signed (9 February 2010).  The corrections are as follows:

    The following corrections are made to the decision:

    1.In Paragraph 12, the sentence which commences “In a letter dated 14 January 2010 posted to the applicant at the last address for service in connection with the review …,” the words “posted to the applicant” should be read as “faxed to the applicant’s representative,”

    2.In Paragraph 12, the sentence which commences “The Tribunal is satisfied that the hearing invitation letter was dated and dispatched by registered prepaid post within three working days of 14 January 2010,” should be read as “The Tribunal is satisfied that the hearing invitation letter was dispatched by fax to the applicant’s representative on 14 January 2010.”

18. The Corrigendum also bears a signature which, as it is apparent from comparison with the copy of the Tribunal decision of 3 February 2010 signed by the presiding member annexed to the affidavit of Louise Bernadette Buchanan affirmed on 30 September 2010, appears to be the signature of that Tribunal member.  No issue is taken in that respect. 

19. In her original application for review filed on 3 March 2010 the applicant relied on one ground.  Although it is no longer relied on, I set it out as it is relevant to the grounds now pursued by the applicant.  It was that “The MRT found that at the time of decision the Tribunal had invited the applicant to attend a hearing such invitation being sent by registered mail to the applicant’s migration agent.  Such was not the case and the applicant was unfairly prevented from attending the hearing and presenting her case.” 

20. The applicant’s written submissions appeared to go beyond this ground and took issue with the power of the Tribunal to issue a corrigendum, circumstances in relation to the file note and the actions of the Tribunal officer. The applicant’s submissions also foreshadowed seeking leave to raise a proposed ground under s.359A of the Migration Act 1958 (Cth) (the Act).

21. However, at the hearing the solicitor for the applicant asserted that the principles considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 were of relevance to this case. It quickly became apparent that the grounds on which the applicant sought to rely differed significantly from the ground in the original application.

22. The hearing was adjourned and I made orders for the filing of an amended application and further submissions.  The applicant filed further written submissions and a proposed amended application.   It was filed out of time, but the first respondent took no issue in that respect and I gave leave to the applicant to file the amended application in court. 

23. The amended application contains three grounds, consisting of the original ground and two further grounds. However at the start of the resumed hearing the solicitor for the applicant advised the court that ground one was not pressed. He also stated that the applicant did not seek to pursue any ground in reliance on s.359A of the Act.

24. The grounds now relied by the applicant on are as follows. 

    (2)     The Tribunal erred in law when it sought to correct factual errors by means of a corrigendum and by so doing it withdrew certain factual findings upon which its decision was predicated and sought to substitute therefore new facts, such corrigendum being void and of no effect and was impermissible.

    (3)     The Tribunal erred in law when it allowed a Tribunal clerk to encroach upon the member’s jurisdictional domain in that a clerk decided what should be done by the Tribunal in the light of legally significant errors and informed the applicant’s representative of what the Tribunal would do, the Tribunal ultimately doing exactly what the clerk had determined 

25. Notwithstanding that no issue appears to be taken as such with the Tribunal’s exercise of its discretion under the Migration Act (specifically under s.362B) it is necessary to have regard to the provisions in the Migration Act in relation to an invitation to a hearing because there appears to be some reliance on principles in Bhardwaj to suggest that the applicant should have been given a further hearing invitation, (although in oral submissions the solicitor for the applicant suggested that there was in fact a distinction between the circumstances in Bhardwaj and those that arose in the present case). Nonetheless, to ensure that the applicant’s grounds are fully considered, it is relevant to note that under s.360 of the Act the Tribunal is obliged to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 360A provides that if an applicant is so invited “the Tribunal must give the applicant notice of the day…time and place” of the hearing by one of the methods specified in s.379A.

26. Section 379A provides for methods by which the Tribunal may give documents to a person, including giving by hand, handing to a person at his or her last residential or business address, dispatch by pre-paid post or by other pre-paid means, or (under s.379A(5)) transmission by fax, email or other electronic means by a Tribunal member, the Registrar, Deputy Registrar or another officer of the Tribunal transmitting the document by fax, email or other electronic means to the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review.

27. Section 379G deals with situations where a person has given the Tribunal written notice of the name and address of another person authorised by the applicant to do certain things on behalf of the applicant that consist of or include receiving documents in connection with the review. This is such a case. In such circumstances the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. If it does so, under s.379G(2) the Tribunal is taken to have given the document to the applicant.

28. I have set out above the circumstances in which the applicant notified the Tribunal of the appointment of an authorised recipient and the fact that the invitation to the hearing was sent by facsimile to the last facsimile number provided for the applicant’s authorised recipient.

29. In this case there is no suggestion that the applicant did not properly appoint her migration agent as authorised recipient.  Hence the Tribunal met its obligations to invite the applicant to a hearing by transmitting the documents by fax to the applicant’s migration agent (as her authorised recipient) to the last fax number provided to the Tribunal.  It is not in dispute that the Tribunal transmitted documents which included a hearing invitation letter addressed to the applicant to the applicant’s authorised recipient in this way.

30. Importantly, under s.379C(5) of the Migration Act, where a document is transmitted by fax the person to whom it is addressed is taken to have received the document at the end of the day on which the document is transmitted. The Tribunal followed those steps.

31. There was no reply to the Tribunal’s invitation to the hearing.  There is no suggestion and no evidence before the court to suggest that at any time prior to the date of the Tribunal decision (that is 3 February 2010) there was any communication from the applicant or her agent to the Tribunal in relation to the hearing invitation. 

32. When the applicant failed to attend the hearing, s.362B of the Act became relevant. It provides:

    (1)     If the applicant:

    (a)     is invited under section 360 to appear before the Tribunal; and

    (b)     does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

    the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

    (2)     This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.

33. While no express issue is taken with the exercise of the Tribunal’s discretion under s.362B, the grounds relied on by the applicant as elaborated on in submissions may be intended to raise such an issue.

34. The solicitor for the applicant referred to the fact that in the Tribunal reasons for decision as the decision stood at 3 February 2010 (the time at which the Tribunal exercised its discretion under s.362B of the Act) the Tribunal referred to the hearing invitation letter having been dispatched by registered pre-paid post, whereas in fact it was transmitted by fax. However insofar as it was intended to be suggested that this meant that the Tribunal did not exercise its discretion under s.362B properly, it is not in dispute that the hearing was properly scheduled, the applicant was invited in a manner that complied with the requirements of the Migration Act and the applicant did not attend the hearing. The preconditions to the exercise of the discretion were met.

35. The exercise of this discretion has been considered in a number of cases (albeit usually in the context of s.426A of the Migration Act, which is the equivalent provision in relation to the Refugee Review Tribunal). No such authorities were referred to in the proceedings before me. There is nothing in the circumstances of this case to establish that the Tribunal’s discretion to make a decision on the review without taking any further action to allow or enable the applicant to appear before it miscarried in a manner constituting jurisdictional error (see generally the principles in SZJQP v Minister for Immigration & Citizenship [2007] FCA 1613 in relation to the exercise of the discretion under s.426A of the Act).

1. Ground two in the amended application relates to the corrigendum.  It was submitted that the Tribunal erred in law when it sought to correct factual errors by means of a corrigendum, in that it was said to have withdrawn certain factual findings upon which its decision was predicated and sought to substitute new facts.  It contended that the corrigendum was “void and of no effect and was impermissible”. 

2. Reliance was placed by the applicant on the decision of Scarlett FM in SZMKN v Minister for Immigration & Anor [2009] FMCA 954. There was no suggestion that I should not follow the approach taken by Scarlett FM in all respects. No other authority was cited in relation to corrigenda to decisions of a Tribunal.

3. In SZMKN a “corrigendum” issued by the Refugee Review Tribunal deleted the final part of a sentence in which the Tribunal had considered the reasons for an applicant’s conduct in Australia (a matter relevant to whether or not such conduct should be disregarded under s.91R(3) of the Migration Act). The “corrigendum” purported to delete a reference to an additional reason for the applicant engaging in certain conduct in Australia. 

4. Scarlett FM found (at [81]) that such a correction was “not the sort of task for a corrigendum”, but was a “change to the reasons because it withdr[ew] a finding a fact”.  This was said to be “outside the scope of a corrigendum, which [was] meant to correct clerical errors and similar errors”.  His Honour continued at [82]:

   Because it purports to withdraw a finding of fact, the corrigendum is void and of no effect. 

5. The applicant submitted that the corrigendum in this case was also void and of no effect.  The corrigendum in SZMKN was issued on 20 February 2009. The decision was dated 19 February 2009. Scarlett FM found that the decision on the review was taken to have been made on the date of the written decision under s.432 of the Act. (The corresponding provision in relation to decisions of the Migration Review Tribunal is s.368(2)). His Honour thus found that when the Tribunal purported to issue the corrigendum it was already functus officio, the decision having been made the day before and that it was too late for the Tribunal to withdraw a finding of fact. 

6. On that basis Scarlett FM considered whether the decision in its original form gave rise to a jurisdictional error. It was in that context that his Honour found that as the reasons had been originally expressed because the Tribunal had found that the applicant had engaged in conduct in Australia for more than one purpose, contrary to the Tribunal’s conclusion s.91R(3) was not engaged and the Tribunal should not have disregarded the applicant’s conduct in Australia. Hence the Tribunal was found to have fallen into jurisdictional error.

7. The first respondent contended that the corrigendum in this case merely addressed a clerical error and that a distinction could be drawn between the nature of the correction considered in SZMKN and in this case because what was in issue in this case was a precondition as to whether or not the Tribunal should exercise its discretion, not a finding of fact that was relevant to the substance of the decision.

8. In any event it was contended that even though there was an error of fact in the Tribunal decision as it stood when it was signed, what was significant was that the preconditions to the Tribunal’s exercise of its discretion under s.362B of the Migration Act had in fact been met.

9. It is relevant to bear in mind that if, contrary to the applicant’s submission, the corrigendum was operative, it would not mean that there was a second decision.  The corrigendum would become part of the original decision.  SZLPH v Minister for Immigration & Citizenship [2008] FCA 744 involved an incomplete Tribunal decision which did not make it explicitly clear that a review had been determined adversely to an applicant. A corrigendum was issued which did make it explicitly clear that the review had been so determined. Weinberg J found that the corrigendum was not a second or separate decision. His Honour also found that no arguable jurisdictional error arose out of the clerical error the Tribunal had made as such error was not capable of affecting the exercise of the Tribunal’s jurisdiction.

10. While minds may differ on whether the error in this case was a mere clerical error (see Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875; “CCC” v Minister for Immigration & Multicultural Affairs [2001] FCA 682 and SZLPH), it is not necessary for me to determine that question for present purposes. Even if the Tribunal was not empowered to issue the corrigendum because the correction went beyond the bounds of what could be addressed in a corrigendum, while that would render the corrigendum of no effect it would leave on foot the uncorrected decision. It has not been established that there was any jurisdictional error in the uncorrected decision as it stood on 3 February 2010. The error as to the method of transmission of the hearing invitation was not capable of affecting the exercise of the Tribunal’s jurisdiction as it is not disputed that the Tribunal did in fact comply with the requirements of the Migration Act in the manner in which it invited the applicant to the Tribunal hearing.

11. It has not been established that the factual error the Tribunal made in relation to the method of notification of the invitation to the hearing was an error that affected the exercise of jurisdiction and constituted a jurisdictional error in the sense considered in Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58.

12. The solicitor for the applicant referred to the fact that in its decision the Tribunal had referred to cl.572.222(2) (which addressed the possibility of a failure of electronic transmission preventing an education provider from sending a Confirmation of Enrolment to the Department) and appeared to submit that the reference to this criterion for the class of visa for which the applicant was applying should somehow have operated as a warning to the Tribunal in the course of the exercise of its discretion under s.362B.

13. However s.379A of the Migration Act provides for giving documents to a person by transmission by fax. Section 379C provides that a person is deemed to have received a document from the Tribunal at the end of the day on which the document is transmitted by fax. What was necessary as a precondition to the exercise of the discretion was for the requirements of the Act to be met. There is nothing in the circumstances of this case to indicate that at the time that the Tribunal exercised its discretion there was any reason for Tribunal concern arising from the manner in which the invitation had been transmitted to the applicant (through the migration agent) by facsimile. Insofar as it was suggested that there was some difference of significance between physical delivery and delivery by an electronic method, the Act provides for delivery by electronic methods. The Tribunal’s adoption of one of the methods provided for in the Act is not such as to indicate that the discretion it exercised under s.362B of the Act miscarried. Nor is it such as to establish that the Tribunal erred in failing to address the possibility that a document sent by facsimile might not have been received through a failure of electronic transmission. I note in this respect that the more usual argument in cases before this court is that a document that has been sent by post has nonetheless not been physically received by an applicant. Similarly, such arguments face the problem that the Act provides for a person to be taken to have received documents sent by post under s.379C of the Act.

14. Insofar as it was suggested that the Tribunal was under an obligation to make further inquiries, there is no such ground in the amended application.  In any event, these are not circumstances in which it has been established that the Tribunal was under an obligation to make further inquiries.  Although there was no reference to relevant authorities, I note that it has been held that in circumstances where an applicant has failed to attend a Tribunal hearing the Tribunal is not under an obligation to make further inquiries as to the applicant’s reason for non-appearance (see in particular the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML and Another (2006) 154 FCR 572; [2006] FCAFC 152).

15. The associated argument made in relation to this ground is not entirely clear.  It involves a submission that where an error of the nature that occurred in this case is made, an appropriate and available procedure for a Tribunal to adopt is the procedure that was adopted by the Tribunal in Bhardwaj. 

16. In Bhardwaj the High Court was considering a situation in which Mr Bhardwaj had failed to attend a Tribunal hearing.  However after it made a decision, the Tribunal had discovered that it had not had regard to a medical certificate that was subsequently brought to its attention.  The Tribunal arranged a fresh hearing and reheard the matter.  An issue arose as to whether the Tribunal could proceed in that manner in circumstance where it might otherwise be said to be functus officio. 

17. The solicitor for the applicant referred to the reasoning of Sopinka J, expressing the majority opinion of the Canadian Supreme Court in Chandler v Alberta Association of Architects [1989] 2 SCR 848; [1989] 6 WWR 521 at 862 as follows:

    As a general rule once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances.  It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v J. O. Ross Engineering Corp…

    To this extent, the principle of functus officio applies.  It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal.  For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law.  Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.  

18. In Bhardwaj, after referring with approval to Chandler, Gleeson CJ went on to state (at [8]):

    The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration.  And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction.  Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness.  The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen.  That requires examination of two questions.  Has the tribunal discharged the functions committed to it by statute?  What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?

19. Gaudron and Gummow JJ (with whom McHugh and Hayne JJ concurred) found that as the Tribunal’s first decision involved jurisdictional error it had not performed its duty under the Migration Act to carry out a review and therefore it was open to it to do so subsequently.

20. As was pointed out by Rares J in SZHSQ v Minister for Immigration and Multicultural Affairs and Another (2006) 155 FCR 159; [2006] FCA 1295 at [59] in Bhardwaj the High Court upheld the Tribunal’s approach “on the ground that the Tribunal initially had not performed a review at all because it failed to have regard to the applicant for review’s communication to it and had not decided [the review] in accordance with the Act”.  His Honour reiterated that:

    An administrative decision which involves jurisdictional error is regarded in law as no decision at all”: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at 506 [76] citing Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 614-615 [51] per Gaudron and Gummow JJ at 618 [63] McHugh and at 646-647 [152] per Hayne J.  

21. The applicant appeared to contend that the Tribunal was under an obligation to consider whether the decision of 3 February 2010 involved a jurisdictional error and, if so, to proceed to rehear the matter.  However the matter brought to its attention after the decision was not of the nature of the communication considered in Bhardwaj.  It has not been established that the Tribunal had failed to discharge its function by not issuing a fresh invitation to the applicant on the basis that its duty to make a decision remained unperformed. 

22. The suggestion that the Tribunal might more appropriately have proceeded in the manner in which the Tribunal proceeded in Bhardwaj does not establish a jurisdictional error in circumstances where it has not been established that the manner in which the Tribunal initially proceeded was such that it had initially not performed a review at all.  Even if the issue of a corrigendum was beyond the Tribunal’s “power to correct a slip or an error of expression” (see Bhardwaj at [7]) per Gleeson CJ), the issue of corrigendum does not amount to a jurisdictional error. Rather, the purported correction would be of no effect if the Tribunal was functus officio.  As indicated however, the original factual error as to the method of transmission of the hearing invitation is not such as to establish jurisdictional error. 

23. Bhardwaj does not assist in establishing jurisdictional error on any basis contended for by the applicant.

24. Insofar as issue is taken with the steps that the Tribunal took when the factual error in its decision was brought to its attention, on the approach taken by Scarlett FM in SZMKN and in accordance with Bhardwaj, the Tribunal would have been functus officio except insofar as it had a power to re-open to issue a corrigendum.  The circumstances are not such that it can be said to have fallen into jurisdictional error by failing to make further inquiries or to extend a fresh invitation to the applicant.  Ground two is not made out. 

25. Ground three is that the Tribunal erred in law when it allowed a Tribunal clerk to encroach on the member’s “jurisdictional domain”.  The solicitor for the applicant cited no authority to support ground three.  It was however contended that there was an unauthorised trespass into the domain of the Tribunal’s statutory jurisdiction which undermined the Tribunal’s authority and raised questions about a possible failure on the Tribunal’s part to comply with its statutory obligations by an unauthorised delegation of powers which, if left uncorrected, could lead to the subverting of the Tribunal itself.

26. This submission was elaborated on in oral submissions, on the basis of reference to the file note apparently prepared by a Tribunal officer.  Issue was taken with the fact that the Tribunal officer had expressed a view about the correct manner of transmission of the hearing invitation.  More particularly, concern was expressed about the fact that the Tribunal officer had recorded that he had stated to the applicant’s representative that the Tribunal would issue a corrigendum pertaining to the error in paragraph 12 of its decision and the Tribunal thereupon proceeded on that basis.

27. I note that, as the solicitor for the first respondent pointed out, the case note is dated 9 February 2010 but appears not to be contemporaneous as it commences by referring to a telephone conversation on 8 February 2010 with a person from the migration agent’s office.  Further, it is clear on the evidence before the court that the Tribunal member (not the Tribunal officer) issued the corrigendum on 9 February 2010 and signed that corrigendum. 

28. This court’s power to review decisions of the Tribunal is confined to circumstances in which it has been established that there has been a jurisdictional error on the part of the Tribunal.  It may well be that for a Tribunal officer to express a view about what a Tribunal will do is an inappropriate administrative practice, but an inappropriate administrative practice does not of itself constitute jurisdictional error. 

29. Insofar as it may have been intended to be contended that there was some lack of procedural fairness in the manner in which the Tribunal issued a corrigendum in precisely the terms that had been contemplated by the Tribunal officer, that is not made out in this case.  The error that was corrected was corrected to reflect what had actually occurred.  There is nothing to suggest that the applicant was in any way denied procedural fairness by the fact that the correction was in accordance with what the Tribunal officer said would occur. 

30. I am not persuaded that it has been established that there was a jurisdictional error arising from the officer’s conversation with the migration agent and the Tribunal’s subsequent action in issuing a corrigendum.  There is no suggestion that the Tribunal does not ever have the power to issue a corrigendum in appropriate circumstances.  Chandler v Alberta, referred to with approval in Bhardwaj, referred to the possibility that if there had been a slip or error then a Tribunal may revisit the matter.  In any event, if the error as to the method of transmission of the hearing invitation was not susceptible to correction by corrigendum, while the corrigendum would be of no effect no jurisdictional error has been established in relation to the Tribunal decision in its uncorrected form. 

31. While it is to some extent understandable that issue may be taken with the appropriateness of a Tribunal officer appearing to assert some authority on behalf of the Tribunal, that was not what ultimately occurred in this case.  The corrigendum was issued by and under the name of the Tribunal member.  It has not been established that the Tribunal fell into error in a manner constituting jurisdictional error.  Ground three is not made out. 

32. As no jurisdictional error has been established on either of the bases contended for by the applicant, the application must be dismissed. 

33. The applicant has been unsuccessful and the first respondent seeks costs in the sum of $4,900. As the solicitor for the applicant conceded, this is a modest amount having regard to the scale in the Federal Magistrates Court Rules and the fact that there have been two hearings in this matter.

34. The solicitor for the applicant contended however that this was a case in which the first respondent should bear costs on the basis that this would have a salutary effect, given that the Tribunal was said to have left itself open to this kind of application by the manner in which the review was conducted and the involvement of the Tribunal officer.  However while these are matters that may be raised with the Minister, they are not such as to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.  The amount sought is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  3 November 2010