SZLQK v Minister for Immigration
[2008] FMCA 633
•23 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLQK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 633 |
| MIGRATION – Remittal of matter to Refugee Review Tribunal – Principal Member purports to reconstitute the Tribunal – whether Tribunal validly constituted – held Tribunal not validly constituted – whether jurisdictional error. |
| Migration Act 1958 (Cth) (as amended), ss.5, 420A, 421, 422, 422A, 424A, 474 & 476 Migration Act 1958 (Cth) (prior to amendments after 2003), s.481 Judiciary Act 1903 (Cth), s.39B Migration Regulations 1994, reg.4.30 The Constitution, para. 75(v) |
| SZFTD v Minister for Immigration & Anor [2007] FMCA 1930 Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 VACC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 Edwards v Commonwealth Bank of Australia (1997) 73 IR 409 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 |
| Applicant: | SZLQK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3549 of 2007 |
| Judgment of: | Lindsay FM |
| Hearing date: | 22 February 2008 |
| Date of Last Submission: | 22 February 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 23 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower |
| Solicitors for the Applicant: | Bourne Lawyers |
| Counsel for the Respondents: | Mr Tredrea |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Amended Application for judicial review filed on 4 February 2008 do stand dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
SYG 3549 of 2007
| SZLQK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (hereinafter referred to as the ‘Tribunal’) on 17 October 2007 to affirm the Minister’s decision not to grant the applicant a protection visa.
The decision was the second time the Tribunal had heard a review from such a review of the Minister.
The first review was made on 27 April 2006 and was set aside by this Court on review.
At all relevant times Mr Giles Short was Principal Member of the Tribunal. It was he who, exercising his power under s.421 of the Migration Act 1958 (the ‘Act’) had directed in writing that the Tribunal which made the first decision be constituted by Mr Bruce McCarthy.
When certiorari issued on 20 July 2007 in relation to the first decision Mr Short made a second written direction - on 15 August 2007 - that the Tribunal be constituted by Ms Kira Raif. The written direction contained a notation as follows:
“Relevant section.421&422”
The text of the direction was as follows:
I constitute or reconstitute the Tribunal for the purpose of particular reviews in accordance with the schedules set out below.
This case was one of a number dealt with in the same written direction. Not all cases referred to in the direction contained a reference to both sections when an appointment of a member was made for that specific case. Some (the majority) referred only to s.421. Where both s.421 and s.422 are referred to, the latter has been added in hand.
Ms Raif presided at the review thereafter and was the author of the second decision. As noted above, she affirmed the Minister’s decision not to grant a protection visa.
The applicant claims that the Tribunal’s decision of 17 October 2007 is vitiated by jurisdictional error in that Ms Raif was not validly appointed to perform the review.
Section 420A of the Act gives the principle member of the Tribunal the power to make directions in relation to the conduct of reviews by the tribunal.
Section 421 of the Act provides:
(1)For the purposes 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.
Section 422 of the Act provides:
(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).
Section 422A of the Act provides:
(1) The Principal Member may direct that:
(a)the member constituting the Tribunal for a particular review be removed; and
(b)another member constitute the Tribunal for the purposes of that review;
if the Principal Member thinks the reconstitution is in the interests of achieving the efficient conduct of the review in accordance with the objective set out in subsection 420(1).
(2)However, the Principal Member must not give such a direction unless:
(a)the Tribunal’s decision on the review has not been recorded in writing or given orally; and
(b) the Principal Member has consulted;
(i) the member constituting the Tribunal; and
(ii) a Senior Member who is not the member constituting the Tribunal; and
(c) either:
(i) the Principal Member is satisfied that there is insufficient material before the Tribunal for the Tribunal to reach a decision on the review; or
(ii) a period equal to or longer than the period prescribed for the purposes of this subparagraph has elapsed since the Tribunal was constituted.
(3)If a direction under this section is given, the member constituting the Tribunal in accordance with the direction is to continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the member who previously constituted the Tribunal.
The scheme of the Act relating to the constitution of the Tribunal by the Principal Member seems plain enough. Section 421 deals with the initial constitution of the Tribunal; s.422 gives a power of reconstitution where the relevant member has retired or is unavailable; and s.422A deals with reconstitution other than on grounds of retirement or unavailability or, in other words, ‘for cause’, the cause being something that relates to the official conduct of the review. Whatever the reason relating to efficiency, the Principal Member must be satisfied that there is either insufficient material to make a decision or there has been a delay for a prescribed period of time (see s.422A(2)(c)).
It is plain that reconstitution of the Tribunal cannot be effected by using s.421. If that section could be used to reconstitute then s.422 and s.422A would be redundant. The conditions prescribed for the exercise of the reconstitutive power would be rendered meaningless. Those provisions could be ignored.
Turner FM in SZFTD v Minister for Immigration & Anor [2007] FMCA 1930 appears to suggest to the contrary. In that case the written direction appointing a member to constitute the Tribunal referred only to s.421. The appointment was apparently the second that had been made during the course of the review. An earlier decision on the review had been the subject of a successful review application to the Federal Magistrates Court.
But I do no read the Federal Magistrate’s decision as suggesting s.421 was the source of power to reconstitute the Tribunal. A reading of the relevant parts of the judgment ([11]-[21]) makes plain that His Honour thought that the source of power in the circumstances was s.422A. With the aid of the presumption of regularity he determined that s.422A had been complied with (see [21]). He did not think that an erroneous reference in the written direction was determinative.
However, the decision then goes on to make further observations - unnecessary to the actual determination of the matter - that s.421 of the Act can be utilised to constitute a Tribunal following a remittal from the Court (see [16]-[18]). Reliance is placed on the decision of McHugh J in Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 at [34].
Wang (supra) was a case involving the exercise of specific powers under s.481 of the Act given to the Federal Court when dealing with a review of decision of the Tribunal. The Full Court of the Federal Court, had allowed an appeal from a single judge which had affirmed the Tribunal’s decision which purported to direct that on remittal the matter be determined by the same member of the Tribunal who had made the decision the subject of the appeal (apparently to give the claimant the chance of continuing to benefit from factual findings favourable to him made by that member). The High Court allowed an appeal by the Minister from the Full Court’s decision. McHugh J said that the Full Court had confused the Tribunal with a particular member of it in purporting to exercise the powers on remittal set out in s.481(1)(b); there could be no remittal to a person other than to the Tribunal itself and the general power to “give such directions as the Court thinks fit” did not override the specific power vested in the Principal Member to nominate the person who would constitute the Tribunal. His Honour thought that s.481(1)(b) was the source of the power but found that there was no evidence that the exercise of the power by a specific member was “necessary” to do justice between the parties.
In deciding the case His Honour clearly assumed (for example at [34] and [35]) that the power of the Principal Member to constitute the Tribunal on remittal derived from s.421 and not s.422 or s.422A. But that assumption is never explored and was unnecessary to the determination of the case, which was a case about the powers of the Federal Court, not the Tribunal.
Mr Tredrea, for the respondents, conceded that the power of the Principal Member to reconstitute the Tribunal was not an issue in Wang (supra).
The Full Court of the Federal Court in VACC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 is quite explicit, at [46], in pointing to s.421 as the power given to the Principal Member to reconstitute the Tribunal on a remittal (a remittal in that case made after s.481 as it stood at the time of Wang had been repealed and made pursuant to the general powers granted to the Court under s.39B of the Judiciary Act 1903 (Cth)). Again, the matter passes without examination though the Court clearly had both s.421 and s.422 in mind when making its remarks in relation to s.421. The source of the power of the Principal Member, however, was again not an issue. The case is one about the meaning of s.424A(3)(a).
Looking at the text of Division 3 of Part 7 of the Act, the purpose of the relevant sections seems plain enough. The Principal Member has wide power to give directions as to the conduct of the review having regard to the objectives which the statute says are to be pursued (see s.420 and s.420A). When the Tribunal is being constituted, s.421 provides the power to do so. But the Act recognises that a reconstitution is a different matter. The need to provide a power to direct that a member other than the member originally nominated to constitute the Tribunal, accounts for the existence of s.422 and s.422A. Each of them deal with the two different ways in which the need to reconstitute may arise - unavailability on the one hand and the need for efficiency in the determination of the review on the other. In the case of the latter, as noted above, specific limitations are placed on the exercise of the power by the Principal Member.
If s.421 had the meaning contended by the Minister, there would be no need for s.422 or s.422A. We are obliged to have recourse to a fundamental principle of statutory construction. It is referred to, somewhat coincidentally, in Wang (supra) at [33]:
It is an elementary rule of statutory construction that powers conferred by general words are not intended to overrule or supersede powers conferred in specific terms. This is particularly so, where the specific power is conferred subject to limitations or qualifications.
The case referred to by McHugh J in his footnote to the proposition set out in the first sentence of the passage cited above in paragraph [24] is Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333. In that case Deane J, as he then was, explains the principle as follows [at 347]:
As a matter of general construction, where there is a repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. “The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative …” (per Romilly MR: Pretty v Solly (1859) 26 Beav 606 at 610). Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter. A more fundamental example of such repugnancy is where the particular provisions prescribe or encourage conduct which the general provisions would render prima facie, though not irremediably, unlawful or where the particular provisions assume to be lawful conduct which the general provisions would render prima facie unlawful.
It is unsurprising that a power to change the identity of an individual member constituting the Tribunal would be the subject of more specific consideration in the legislation than the power to merely appoint a constituent member in the first place. The Tribunal system must work in a way that is just and open and such that any suggestion of removal of a member for capricious or improper reasons does not arise. Reconstitution should only take place for good reason. Sections 422 and 422A tell us what those reasons are.
Reconstitution does not alter the fact that it is throughout the process the one review which is taking place from the time it is initiated by the applicant under s.414 until a decision is notified under s.430. All of this was expiated by the Full Court of the Federal Court in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107, a decision involving a reconstituted Tribunal and the obligation under s.424A to give information to applicants of matters relied upon by the Tribunal as a reason for their decision (even though the applicant had been given the information by the first member who constituted the Tribunal he complained that the second member, who also relied upon the information as such a reason, had not provided it to him). At [38] and [39] the Full Court said:
38.Upon the making of the First Decision, the review of the delegate’s decision undertaken pursuant to s.414(1) was at an end. Assuming the effect of the Consent Orders was to quash or set aside the First Decision, it was incumbent upon the Tribunal to embark upon a review of the delegate’s decision according to law. It was a review by the Tribunal that was required, not a review by a particular member of the Tribunal. It was the decision of the Tribunal that was set aside, not the decision of a particular member of the Tribunal (see Wang at 529).
39.In any event, when ss.421, 422 and 422A refer to ‘a particular review’, they identify the review initiated under s.414(1) and culminating in a decision in accordance with s.430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s.414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
The case was one involving a decision of a reconstituted Tribunal following a remittal from a decision of this Court on review. The jurisdictional error was said to arise in the first decision from a denial of procedural fairness. The decision sheds no light on the question of how the Tribunal was reconstituted.
In this case the instrument dated 15 August 2007 directing Ms Raif to constitute the Tribunal for this particular review, where it describes the relevant section as “421 and 422” is erroneous insofar as it referred to s.421. The Tribunal had already been constituted by Mr McCarthy. Whatever the Principal Member was doing by this document it must be taken to be a reconstitution. It is a direction made under s.422 or s.422A. The document does not refer to the latter but I agree with Turner FM in SZFTD (supra) that such an absence is not determinative. As His Honour says in that judgment at [14]:
Also, although the heading of s.422A refers to “Reconstitution of Tribunal...”, its terms provide that “the Principle (sic) Member may direct that...another member constitute the Tribunal for the purposes of that review”. It is not determinative of the question of the validity of the direction in Exhibit A1 that the form refers to the general power in s.421, and not the specific powers in ss.422 and 422A. The position is that the Principle (sic) Member had the power to give the direction as to who would constitute the Tribunal for the purpose of the particular review. That power was exercised. Even if an error was made by referring to s.421 in the form, that does not mean that the power to issue a direction as to who is to constitute the Tribunal has not been validly exercised. At most, it means that the form (Exhibit A1) has not been filled in accurately. The direction of who was to constitute the Tribunal was made: for that direction to be valid, it is not necessary that a particular section be specified on the form. The Principle (sic) Member had the power to constitute and reconstitute – that power was exercised. It is not crucial which section the form refers to. The fact is, the Principle Member (sic) was exercising his power to direct who was to constitute the Tribunal for the purpose of the review. Nothing was done that was beyond power. The direction to constitute the Tribunal is valid.
Mr Ower, for the applicant, says that for the direction that Ms Raif constitute the Tribunal to be valid, the conditions for the exercise of the power under s.422 must be satisfied, that is, Mr McCarthy must either have stopped being a member or was not available for the purposes of the review at the place the review was being conducted.
Mr Ower says that there is no evidence of either of such conditions being satisfied. For the purposes of the hearing before me, a Notice to Produce was served upon the second respondent asking, inter alia, for all documents relating to any direction made by the Principal Member that Ms Raif constitute the Tribunal for the review.
It was agreed that no documents evidencing Mr McCarthy’s unavailability or his ceasing to be a member of the Tribunal were produced in response to the Notice.
Mr Ower introduced into the evidence before me a copy of a direction of the Principal Member issued on the 1 August 2007 headed “Caseload and Constitution Policy”. Under the heading “The constitution of the Tribunal” appears the following:
19.As a general rule, where a person has previously had a case reviewed by the Tribunal, any new case, or any case remitted for reconsideration, in which that person is an applicant, will be allocated to a Member other than the Member who had previously constituted the Tribunal.
Mr Ower says - and I agree - that such direction evidences a flawed understanding of the Principal Member’s powers of constituting the tribunal - it indicates a misapprehension that a remittal for reconsideration has the effect of requiring the constitution of a wholly new review. That might explain why the particular direction does not appear further on in the document under the heading “The Reconstitution of the Tribunal”. Another possible basis for the misapprehension is discussed below.
That direction was tendered to rebut the presumption of regularity encapsulated in the maxim, omnia prae sumuntur rite esse acta.
The presumption was discussed in Edwards v Commonwealth Bank of Australia (1997) 73 IR 409 at 413-414 in a passage cited by Turner FM in SZFTD (supra) at [19]:
presumption of regularity, omnia praesumuntur rite esse acta, has a long lineage: see R H Kersley, Broom’s Legal Maxims (10th ed, London, Sweet & Maxwell Ltd, 1939) at p 640. It was described in the following way by McHugh JA (as he then was) in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164:
The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to the office: M’Gahey v Alston (1836) 2 M & W 206 at 211; 150 ER 731 at 733; R v Brewer (1942) 66 CLR 535 at 548; Hardess v Beaumont [1953] VLR 315 at 318-319. And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 583.
A particular application of the presumption has the result that where an act is done which can be done legally only after the performance of some prior act, proof of the latter act carries with it a presumption that there has been due performance of the prior act: see McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 849-850, and for more recent applications of that presumption, see Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1986) 67 ALR 282 at 297; Dawson v Westpac Banking Corporation (1991) 66 ALJR 94 at 99; Australian Securities Commission v Fairlie (1993) 11 ACLC 669 at 695 and Re NIAA Corporation Ltd (in liq) (1993) 12 ACSR 141 at 144.
The presumption may be viewed as a presumption of law: see J D Heydon, Cross on Evidence (5th ed, Sydney, Butterworths, 1996) at par 1175, though a rebuttable one. The presumption prevails if there is no evidence rebutting it: see Re Bladen [1952] VLR 82 at 86-87; Mallock v Tabak [1977] VR 78 at 84; Smith v Smith (1985) 80 FLR 444 at 450; Perlt v Kahl (1976) 13 SASR 433; and Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506 at 514.
Mr Ower emphasises that the presumption is a rebuttable one and says that it has been rebutted here, firstly by the policy document discussed above which demonstrates either a misunderstanding of the fact of the review being the same review both before and after the remittal or of the distinction to be drawn between a constitution and a reconstitution of the Tribunal. One should not, by use of the aforesaid presumption infer that the Tribunal in fact proceeded under s.422 or s.422A when there is evidence of a policy which indicates that it in fact considered s.421 as the source of the power. I regard that document as significant for that reason.
Secondly, he says that the absence of any documents produced in response to the Notice evidencing any reason for Mr McCarthy being unavailable for the review is another fact that rebuts the presumption. I do not know, however, that the drawing of such an inference from the absence of evidence is the kind of evidence that should be regarded as capable of rebutting the presumption. Too much ambiguity attends the absence of the document. It may well be that Mr McCarthy’s unavailability happened to be evidenced in some kind of document but it may just be the case that no such document came into existence.
With respect to the evidence rebutting the presumption there is a difference between the position with respect to s.422 and that with respect to s.422A.
In the case of the latter we have evidence additional to the policy document indicating that this section was not relied upon. We have the constitutive direction document from the Principal Member itself. It specifically refers to s.421 and s.422. That is direct evidence rebutting the suggestion that s.422A was relied upon. I do not think that there is scope for applying a presumption of regularity such as would enable me to proceed upon the basis that s.422A was utilised to reconstitute the Tribunal with Ms Raif. There are two circumstances relating to s.422A that suggest that it does not sit easily with the circumstances presented by a remittal. Firstly, the prohibition on a reconstitutive direction found in s.422A(2)(a) does not sit well with the circumstances of a decision which has been recorded in writing and which is the subject of a successful review application. We must infer, I think, to the reference to “the tribunal’s decision on the review” to be a reference to a valid decision on review (see SZEPZ (supra)). Similarly, the alternative precondition in s.422A(c)(ii) must be taken to be applicable to a Tribunal constituted other than in a response to a decision that has been quashed on review. Regulation 4.30 of the Migration Regulations 1994 prescribes a period of two months for applicants in detention and three months for those not in detention as the time that must have been reached or exceeded for the direction to be given. This condition (and it is one of two alternatives that must be fulfilled) will inevitably be fulfilled when a review has reached the stage of a reconstitution following a remittal. It is otiose in the circumstances of this case. It may be that the draftsman did not have the circumstances of a remittal in mind when these provisions were drawn but that does not mean that we should invert the plain meaning of s.421 in order to allow it to be used as the mechanism for such circumstances. The reading down of these parts of s.422A in the manner I have just described is an appropriate response to these difficulties.
In any event, turning to s.422, I agree with Mr Ower that the policy document is evidence which rebuts the application of the presumption in this case. It is a fact indicating that the Principal Member considered himself to be using the constitutive power of s.421 in the circumstances of a remittal from the Court.
But Mr Tredrea, for the Minister and the second respondent, says that s.421 can be used in such circumstances because a member whose decision has been quashed on review for reasons relating to apprehended bias (as here) is “not available” to hear the review on remittal. That expression, he says, is broad enough to take account of situations where good administrative practice requires a change in the identity of the member. The section certainly uses the expression “for any reason” but the section goes on to link unavailability with the physical location of where the review is being conducted. That seems to me to be inconsonant with such a broad interpretation. Moreover, good administrative practice is surely what s.422A is all about when it speaks, in its heading and in its text of “the efficient conduct of the review”. As with the argument advanced in relation to section s.421, such an interpretation would give s.422A no work to do.
I think the plain meaning of s.422 is that it provides a mechanism for the Principal Member to substitute one member for another on a review when the first member is unavailable to finish what was started - in the sense of prevented from sitting on account of some practical difficulty, examples of which would be his illness, his incapacity, his taking leave or being seconded to another State.
If a review conducted by the Tribunal has proceeded to the point of a decision of which the applicant is notified and that decision has been successfully reviewed by a court and the matter remitted to the Tribunal in circumstances or for reasons which would make the continued presence of that member as the constitutive member of the Tribunal inappropriate, s.422 is not, and in my view, never intended to be the mechanism for the reconstitution by the Principal Member of the Tribunal with another member. That is the function of s.422A and it has, as one would expect it to have, specific conditions pertaining to its use.
It follows, then, that the direction that Ms Raif constitute the Tribunal was one made in reliance on the wrong section of the Act. The policy document explains the provenance of the error. If the Principal Member, confronted with a remittal where the Court had found the member ought to have been disqualified on account of apprehended bias, wished to reconstitute the Tribunal then he should have done so pursuant to s.422A of the Act. That required certain consultations to be performed and conditions met. I have no evidence that they were preformed or met and for reasons already given I am not prepared to presume such matters.
So the Principal Member was in error in reconstituting the Tribunal as he did. Does that mean that the Tribunal so constituted fell into jurisdictional error in making its decision? The application to this Court is one brought in relation to the Tribunal decision of 17 October 2007, not in relation to any decision of the Principal Member as to the constitution of the Tribunal under any of the sections I have been discussing. The Principal Member’s decision as to the constitution of the Tribunal of the 15 August 2007 was a migration decision as defined in s.5 of the Act; it was a privative clause decision under section s.474 of the Act but one that could be reviewed by the High Court under paragraph 75(v) of the Constitution and therefore reviewable by this Court under s.476 of the Act. It does not fit into any of the categories of decision described in s.476(ii) in respect of which the Court has no jurisdiction. But the Principal Member’s decision is not the subject of the application to this Court. The application is in respect of that decision made by the Tribunal on 17 October 2007 in respect of which the Principal Member’s decision was an antecedent step, one of many antecedent steps in the review process. Jurisdictional error is not alleged in relation to the Principal Member’s decision but in relation to the decision notified to the applicant on 17 October 2007 in accordance with Division 5 of Part 7 of the Act.
Those sections the subject of previous discussion herein - ss.421, 422, 422A - appear in Division 3 of Part 7 of the Act which is headed “Exercise of Refugee Review Tribunal’s Powers”. Section 420A empowers the Principal Member to give directions as to the conduct of the review by the Tribunal. He is still operating as a member of the Tribunal when he makes such directions and in furtherance of the review process instituted in accordance with s.412. His direction forms part of the decision the Tribunal makes on the review. The Principal Member is not operating pursuant to some power independent of the Tribunal’s authority to conduct the review (see SZEPZ (supra) at [39]).
It is upon such an understanding of the relationship between the Principal Member’s direction and the review decision itself that the hearing before me proceeded. If the Principal Member fell into jurisdictional error then the Tribunal decision itself, of which such direction was part, was a decision made in excess of or in want of jurisdiction.
Mr Tredrea argues that the decision of the Principal Member, if it be made in error, is yet one made within jurisdiction. He says that a failure to comply with s.421 (and I think he must be taken to mean also a wrongful reliance on that section and a failure to comply with s.422 and s.422A) is not an error which goes to jurisdiction. He relies upon the following passages from the judgment of McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [72]-[73]:
72.Jurisdictional error may arise where a decision-maker fails to discharge “imperative duties” or to observe “inviolable limitations or restraints” found in the Act. To determine whether a decision under the Act involves a jurisdictional error, it is necessary to take two steps. First, it is necessary to determine the limitations and restraints found in the Act. Secondly, it is necessary to attempt, through statutory construction, to reconcile them with s.474 of the Act to ascertain whether failure to observe any particular procedural or other requirement in the Act constitutes an error which has resulted in the decision-maker failing to exercise or exceeding its jurisdiction.
73.Section 424A is a statutory formulation of the obligation to accord procedural fairness in the conduct of a review. The question is whether failure to comply with that section gives rise to jurisdictional error such that the decision of the Tribunal is invalidated. To answer this question, it is necessary to have regard to "the language of the relevant provision and the scope and object of the whole statute" in order to ascertain whether the Parliament intended that an act done in breach of s.424A is invalid. The question is not easy to answer. In the joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority, Gummow, Kirby and Hayne JJ and I said that whether an act done in breach of a condition regulating the exercise of a statutory power is invalid:
“depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.” (footnotes omitted)
Ultimately, His Honour found that a failure to comply with the giving of written notice of information relied upon as a reason for the decision on review was a jurisdictional error. Section 424A (the section under discussion in that case) was, of course, the statutory formulation of the obligation to accord procedural fairness (see [77] and also Hayne J at [204] to [209]).
Here the Principal Member wrongly utilised a power to constitute a Tribunal when he should have used his power to reconstitute. Remittal following successful review by the court on apprehended bias ground is the type of situation calling for the exercise of s.422A powers to reconstitute. They were not used. They could have been used but the conditions for their use were never fulfilled or addressed.
Is a decision made by the Tribunal following such events no decision at all under the Act? Does the legislature indicate in the language chosen to clothe the Principal Member with power to make directions in such cases, an intention that a failure to make the appropriate choice as to constitution or reconstitution will render the review decision invalid?
The sections dealing with the Principal Member’s power form a discrete section of Part 7 of the Act. They are not bound up with any of the essential tasks of the Tribunal on review or of the processes designed to give procedural fairness to an applicant. They are important and are intended to clarify the circumstances in which a Principal Member can constitute or reconstitute the Tribunal. There are a large number of decisions under the Act which we know from s.474 of the Act are intended to be final and not the subject of any form of review. That does not indicate an intention by the legislature that decisions should not be made in accordance with those statutory requirements. It simply indicates that a failure to comply with such requirements is not intended to carry the consequence of rendering the decision a nullity unless the error is made in excess of or for want of jurisdiction. The Principal Member’s error here can be properly characterised as procedural. It did not violate any provisions of the Act which went to fundamental aspects of the Tribunal’s work. A change in the identity of the member constituting the Tribunal was obviously appropriate in the light of the Court’s findings. Different considerations might have arisen if s.421 was utilised to effect such a change in the identity of the member of the Tribunal where no cause at all could be identified.
I am unable to find that the error described above was jurisdictional.
A further ground upon which it is said that the Tribunal fell into jurisdictional error is in the way that it dealt with the applicant’s fears in relation to those who participated in voodoo cult practices in Nigeria. It is said that the Tribunal failed to consider the applicant’s case from the perspective of the direct harm (that is, physical violence) he feared from the members of the cult. While the Tribunal (quite properly the applicant concedes) dismissed as not well-founded the applicant’s fears of this cult from the perspective of his being the subject of a curse or a spell, it is said that it failed to consider the risk of physical harm from such persons as an independent source of the well-founded fear. This aspect of the applicant’s case as to his fear, it is said, clearly arose on the evidence before the Tribunal.
But the difficulty is that this perspective on the risk of the voodoo cult was entirely absent from any account given by the applicant to the Tribunal (see CB 176.08; 180.8; 183.3 and 183.4-5). There was some limited reference to the violence and intimidation used by the cult (see the hearsay reference by one Anne Higgins which appears at CB 164) but it was hardly such as would put the Tribunal on notice that it might form some significant, albeit unarticulated, aspect of the applicant’s claim. The applicant did not see the voodoo risk in this way and no error, let alone jurisdictional error, on the part of the Tribunal arises by it not considering it, given the scant information available as to the topic.
No error, let alone a jurisdictional error, exists in relation to this aspect of the matter.
These were the only two bases upon which the applicant urged the Court to find jurisdictional error established. They both failed. The application is dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 23 May 2008
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