SZRPF v Minister for Immigration

Case •

[2013] FMCA 54

•

31 January 2013

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRPF v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 54
MIGRATION – Review of Refugee Review Tribunal decision – decision bearing two dates – consideration of when the decision was made – judicial review application filed 36 days after the earlier of the two dates – whether the application is competent considered.
Federal Magistrates Court Rules 2001 (Cth)
Acts Interpretation Act 1901 (Cth), s.33(3)
Migration Act 1958 (Cth), ss.421, 425, 426A, 430, 430A, 430D, 457, 458, 471, 472, 477
Legislation Amendment Bill (No 1) 2008 (Cth)
Legislation Amendment Bill (No 2) 2008 (Cth)
Minister for Immigration v Bhardwaj (2002) 209 CLR 597
Minister for Immigration v Kurtovic (1990) 21 FCR 193
Minister for Immigration v SZQOY [2012] FCAFC 131
SZQCN v Minister for Immigration & Anor [2011] FMCA 606
SZQOY v Minister for Immigration & Anor [2012] FMCA 289
SZQQC v Minister for Immigration & Anor [2012] FMCA 410
SZRLT v Minister for Immigration & Anor [2012] FMCA 724
Applicant: SZRPF
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1389 of 2012
Judgment of: Driver FM
Hearing date: 31 January 2013
Delivered at: Sydney
Delivered on: 31 January 2013

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms M Allars
Solicitors for the Respondents: Minter Ellison

ORDERS

  1. The declaration and notation made on 9 August 2012 are vacated.

  2. The application filed on 26 June 2012 is dismissed as incompetent.

  3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,471 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1389 of 2012

SZRPF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

  1. I have before me an application filed on 26 June 2012 seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal).  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  There is a preliminary issue of the competence of the judicial review application.  That issue depends upon the resolution of the question of when the decision of the Tribunal was made. 

  2. The background facts in this case are conveniently summarised in the Minister's written submissions filed on 23 January 2013.  The following statement of background facts is derived from those written submissions.

Findings of Tribunal

  1. The applicant, a citizen of the People’s Republic of China (“the PRC”), sought a protection visa on the ground that he had a well founded fear of persecution by reason of political opinion in connection with his having reported corrupt conduct in his workplace.

  2. The Tribunal found that:

    a)there were inconsistencies in the applicant’s account of the first occasion when he was beaten by gangsters;[1]

    [1] CB 136 [174].

    b)the applicant did not claim in his application for the visa that he was beaten,[2] claimed for the first time at the Tribunal hearing that police directed the gangsters to beat him,[3] and the claims were not accepted; [4]

    [2] CB 136 [175].

    [3]  CB 137 [177] – [178].

    [4] CB 143 [206].

    c)he claimed for the first time at the Tribunal hearing that he demonstrated outside the National People’s Committee at the beginning of 2010 and demonstrated a slogan in front of the gates, and the Tribunal did not accept this claim;[5]

    [5]  CB 137-8 [181], [182].

    d)he claimed for the first time at the Tribunal hearing that in 2010 he was arrested by the police (or the PSN) and was educated by them, and the Tribunal did not accept this claim; [6]

    [6] CB 138 [184].

    e)it did not accept that money was paid for him to be released;[7] 

    f)it did not accept that he was placed on a blacklist;[8] 

    g)because the applicant was not a witness of truth, it did not accept, without independent corroborative evidence, that he complained to a number of bodies about corruption or that he never stopped his appeals about the person who was the subject of his complaint about corruption in the workplace;[9]

    h)the applicant’s delay of over six years from the date of his first claimed beating until his application to leave the PRC was inconsistent with his claimed fear;[10]

    i)the applicant’s delay of three months after his arrival in Australia before applying for a protection visa supported the finding that he was not truthful as to his claims of persecution in the PRC;[11]

    j)the applicant gave false information in his visa application as to his former employer;[12]

    k)the applicant’s claim that he had  been charged with an offence was not accepted, as he did not have difficulty in obtaining a passport in the PRC in his own name and departing the PRC;[13]

    l)his claim that he was suspended from his employment in 2004 and that his employment was terminated after he came to Australia should not be accepted;[14]

    m)his claims that he had attended hospital after claimed attacks, and that he complained to the anti-corruption office should not be accepted;[15] and

    n)there was not a real chance that the applicant would face persecution for reasons of his political opinion if he were to return to the PRC.[16]

    [7] CB 138-9 [186].

    [8] CB 139 [187], 143 [205].

    [9] CB 139 [188], 143 [207].

    [10]  CB 139 - 140 [189], [190], [194].

    [11]  CB 140 [191] - [194].

    [12]  CB 141 [195] - [196].

    [13]  CB 141 [197] - [198].

    [14] CB 142 [201].

    [15]  CB 142 [202], [203].

    [16] CB 143 [208].

  3. The Tribunal concluded that it was unable to be satisfied that the applicant had a well founded fear of persecution. [17]

    [17] CB 143 [209].

The judicial review application

  1. This case first came before me for directions on 9 August 2012.  At that time, the applicant took the view that his application had been filed within time and he did not need an extension of time.  I agreed with him.  I made a notation to orders and declaration at that time bearing on that issue:

    THE COURT NOTES THAT:

    1.The decision of the Refugee Review Tribunal the subject of the show cause application filed on 26 June 2012 is purportedly dated on its face 21 May 2012 but that the certification signed by the Tribunal’s District Registrar on the last page of the decision is dated 22 May 2012. 

    THE COURT DECLARES THAT:

    1.In the circumstances, that the Tribunal’s decision was not completed until 22 May 2012 and declares that the show cause application was filed within 35 days of the date of the Tribunal decision for the purposes of s.477(1) of the Migration Act 1958 (Cth).

  2. The matter came before me again on 26 September 2012.  At that hearing, I acceded to a request made by the solicitor for the Minister for the Minister to have the opportunity to put submissions in relation to the competence of the judicial review application at the final hearing of the application.

  3. Those submissions were filed on 23 January 2013.  I have before me as evidence the applicant's affidavit filed with his judicial review application and the court book filed on 29 August 2012. 

  4. In view of the potential significance of the issue of the competence of the application, the Court attempted to arrange pro bono representation for the applicant.  Unfortunately, that request was not successful.  In addition, unfortunately, the applicant has not received advice under the Minister's panel advice scheme.  I note from the correspondence file that Mr David Godwin reported on 20 September 2012 that he was unable to provide advice to the applicant because he was not able to contact him by telephone.  The applicant is plainly at a disadvantage in that he has not received any legal advice bearing on either the issue of competence of his application or the application generally.  I considered in discussion with the parties today how the Court should best deal with the matter in order to avoid any irremediable injustice. 

  5. The parties agreed that it was appropriate for me to deal with the application today bearing in mind that this is a final hearing and the applicant would have a right of appeal to the Federal Court.  The resolution of the question of the competence of the application involves an issue of law, namely, the interpretation of the relevant provisions of the Migration Act 1958 (Cth) (Migration Act). Those provisions establish that, for the purposes of s.477 of the Migration Act, time runs from when the relevant decision of the Tribunal is made.

  6. Formerly, the Migration Act provided for a process of the Tribunal handing down its decisions in a similar manner to a court. However, the Migration Act has been amended to remove that obligation. The process is now an administrative one of the Tribunal completing its decision and forwarding the statement recording the decision to the applicant and the Secretary of the Minister's Department.

  7. The question of fact to resolve in this case is when the written statement recording the Tribunal's decision was made: was it the date on the cover of the record or was it the date of certification on behalf of the Tribunal's district registrar at the end of the decision?  My previous view was that the date of the statement was the latter.  I was influenced both by considerations of fairness and legal considerations.  The issue of fairness is that there may be a delay between the Tribunal presiding member completing the statement and it being provided to an applicant.  The impact of such a delay is minimised if one takes as the date of the statement the date of certification of it.  The issue of law is that, on my understanding of the authorities, a decision of the Tribunal may be altered up to the point when it is beyond recall.  In my view, a decision is not beyond recall until it has been certified and despatched. 

  8. The applicant maintains that his judicial review application was filed within time and that he does not require an extension of time pursuant to s.477(2) of the Migration Act. The Minister has provided through his counsel helpful submissions bearing upon this issue. I agree with those submissions and adopt them.

Jurisdiction: Whether application filed out of time

Statutory framework

  1. Section 477 of the Act relevantly provides as follows:

    477 Time limits on applications to the Federal Magistrates Court

    (1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

    (2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:

    (a)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant  considers that it is necessary in the interests of the administration of justice to make the order; and

    (b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

    (3)    In this section:

    “date of the migration decision” means:

    …

    (b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal – the date of the written statement under section 368(1) or 430(1), or

    …

    (4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

    (5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migrant decision.

  2. Section 430(1) relevantly provides

    430 Refugee Review Tribunal to record its decisions etc

    (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

    (a)sets out the decision of the Tribunal on the review; and

    (b)sets out the reasons for the decision; and

    (c)sets out the findings on any material question of fact; and

    (d)refers to the evidence or any other material on which the findings of fact were based.

    (2) A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.

    (3)Where the Tribunal has prepared the written statement, the Tribunal must:

    (a)return to the Secretary any document that the Secretary has provide in relation to the review; and

    (b)give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

  3. Section 430A(1)(a) imposes a duty upon the Tribunal to notify the applicant of a decision on a review by giving the applicant a copy of the written statement within 14 days after the day on which the decision is taken to have been made. Pursuant to s.430A(2)(a) the Tribunal has a similar duty to give a copy of the written statement to the Secretary.

  4. The Tribunal is established by s.457 of the Migration Act. References in the Migration Act to “Refugee Review Tribunal” mean the Tribunal so established.[18] Section 421(1) provides that for the purposes of a particular review, the Tribunal is to be constituted, in accordance with a direction under s.421(2), by a single member. Section 421(2) empowers the Principal Member to give a written direction about who is to constitute the Tribunal for the purpose of a particular review. Provision is made in s.458 for the categories of Principal Member, Deputy Principal Member, senior members and other members. Members are appointed by the Governor-General.[19]  The Principal Member has power to delegate power (with an exception that is not material) to a member.[20]  Other members of the Tribunal do not have power to delegate their powers.

    [18] Section 410

    [19]  Section 459(1).

    [20]  Section 470.

  5. The registry of the Tribunal is established by s.471 of the Migration Act. Section 472(1) provides that there are to be a Registrar and other officers of the Tribunal. The officers are to have the duties provided by the Migration Act and Migration Regulations 1994 (Cth) and as directed by the Principal Member.[21]

    [21] Section 472(3).

Case law

  1. In the present case there is no issue as to whether the Tribunal is precluded from reconsidering its decision because it is functus officio.[22] The issue is whether the limitation period imposed by s.477(1) “within 35 days of the date of the migration decision” runs from 21 May 2012 or 22 May 2012. However case law primarily concerned with the issue of functus officio has raised the issue of the construction of s.430(2), which is related to the construction of s.477(1). It is therefore necessary to consider that case law.

    [22]  A statutory power may be exercisable on only one occasion, or exercisable from time to time: Minister for Immigration v Kurtovic (1990) 21 FCR 193. Where a power is exercisable from time to time, the decision-maker vested with such power is not functus officio after the first exercise of power. Where the statute does not expressly provide that a power is spent when exercised, or that it may be exercised on more than one occasion, the construction of the power may be assisted by the Acts Interpretation Act 1901 (Cth) s.33(3). However where a decision-maker's exercise of power is spent and the decision-maker is therefore functus officio, a purported second exercise of the power by the decision-maker is ultra vires: Minister for Immigration v Kurtovic (1990) 21 FCR 193. Whether a power is exercisable on only one occasion or from time to time, circumstances may arise where the exercise of power is invalid for excess of power or void for denial of procedural fairness. The decision-maker may revisit the exercise of its powers or reconsider the whole matter afresh if the statute manifests an intention to permit reconsideration in circumstances where the decision-maker has failed to discharge its functions and fallen into jurisdictional error: Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at [8], [43].

  2. In SZQCN v Minister for Immigration & Anor[23] Smith FM held that s.430(2) was intended to operate not only as a provision governing the calculation of time for the purpose of time limitations upon judicial review but also to deem a point in time when a valid decision of the Tribunal takes legal effect and is incapable of recall or reconsideration.[24]

    [23] [2011] FMCA 606.

    [24] [2011] FMCA 606 at [50].

  3. In SZQOY v Minister for Immigration & Anor[25] Cameron FM disagreed with the view expressed by Smith FM in SZQCN that the legislative intention is that s.430(2) deems a tribunal decision to take legal effect at the first point of time on the date specified in the statement of reasons, and hence provides for when the Tribunal is functus officio.[26] Federal Magistrate Cameron held that s.430(2) does not provide for the point of time at which the Tribunal is functus officio.[27] The sole legislative intention of s.430(2) is to provide a simpler procedure for notification of Tribunal decisions, for the purpose of determining the commencement of the limitation period.[28]  The point of time when the Tribunal becomes functus officio requires an enquiry which is not determined by the application of s.430(2).[29]

    [25] [2012] FMCA 289.

    [26] [2012] FMCA 289 at [40], [42].

    [27] [2012] FMCA 289 at [31], [41], [43].

    [28] [2012] FMCA 289 at [31], [41].

    [29] [2012] FMCA 289 at [43].

  4. On this construction the Tribunal may be deemed under s.430(2) to have made a decision on a review, so that the limitation period under s.477(1) commences to run, even though the Tribunal is not functus officio. If the Tribunal receives a submission from an applicant after it has made a decision on the review for the purposes of s.430(2), the Tribunal’s decision is not beyond recall and failure to consider the submission may constitute a denial of procedural fairness or non-compliance with s.425 of the Migration Act and hence a jurisdictional error, regardless of the fact that the limitation period is running.

  5. Thus, in SZQOY, although the Tribunal member had completed the decision on the review and taken the next step in the electronic management of the review by alerting the registry that the decision was ready to be published to the applicant, the receipt by the Tribunal of a submission by the applicant, two hours later, occurred at a time when the decision could be re-opened.  The Tribunal member’s response, that the case could not be re-opened, involved legal error as the case could have been re-opened.[30]  Since the applicant’s submissions contained information that was not so insignificant that it could not have materially affected the decision on the review, the Tribunal should have considered it in order to determine whether to re-open the decision, and in failing to do so it made a jurisdictional error.[31]

    [30] [2012] FMCA 289 at [44].

    [31] [2012] FMCA 289 at [44].

  6. The Full Federal Court dismissed an appeal from Cameron FM’s decision in SZQOY.[32] Buchanan J held that there was no support in the Migration Act for attributing to the preparation of a statement of reasons under s.430 and its transmission the registry a finality and legal significance amounting to completion of the review, preventing the Tribunal member from recalling the decision.[33] The Tribunal constituted by its member, retained legal authority to recall, revise, amend or if appropriate reverse its decision on the review even after the member had transmitted the decision to the registry.[34]  Logan J held that the decision was not beyond recall until it was manifested to the applicant and to the Secretary by some overt act such as oral pronouncement or sending it in accordance with the notification obligation, because only then was the core function of the Tribunal, as constituted by the particular member, complete.[35]  Barker J held that only upon communication of the decision to the parties does the decision become beyond recall.[36]

    [32]  Minister for Immigration v SZQOY [2012] FCAFC 131.

    [33] [2012] FCAFC 131 at [22], [29].

    [34] [2012] FCAFC 131 at [24].

    [35] [2012] FCAFC 131 at [34], [40].

    [36] [2012] FCAFC 131 at [57].

  1. Only Logan J considered the construction of s.430(2) in passing. Logan J had noted that the Tribunal is constituted by a single member when it undertakes the core function of review in a particular case. Constituted by that single member, the Tribunal is responsible not only for making the decision on the review but also for preparing the written statement under s.430 and notifying the applicant and the Secretary in writing as required by s.430A, or orally pursuant to s.430D.[37]  The focus must therefore be on when that single member becomes functus officio.[38]  As part of the procedure:

    .. s 430(2) seems to have no higher purpose than giving precision to what is to be the date of the decision when the RRT avails itself of that alternative [notification by means other than orally]. It is no part of the sub-section’s role to preclude the member constituting the RRT for the purposes of the particular review from changing his or her mind before notification by that alternative occurs.[39]

    [37] [2012] FCAFC 131 at [39].

    [38] [2012] FCAFC 131 at [39].

    [39] [2012] FCAFC 131 at [44].

  2. Cameron FM also considered the question of when the Tribunal becomes functus officio in SZQQC v Minister for Immigration & Anor.[40] The case was decided prior to the Full Court decision in SZQOY. The Tribunal proceeded to make a decision under s.426A of the Migration Act because the applicant had not appeared on the scheduled day of the hearing. Two hours after the hearing was scheduled to commence, and after the Tribunal had made its decision but before it had been published (which was done the next day), the Tribunal received a facsimile from the applicant, advising that he was ill and requesting an adjournment. The Tribunal took the view that when it received the request it was functus officio and had no power to take any further action, and concluded that it would have rejected the request even if it had not been functus. Cameron FM held that since neither s.430(2) nor any other provision of the Migration Act prescribed a point of time when the Tribunal was functus officio, that was determined by the common law.[41] When it received the facsimile the Tribunal was not functus officio and was not prevented from reconsidering its exercise of discretion under s.426A, and was obliged to consider the request for an adjournment.[42]  The Tribunal denied the applicant procedural fairness by reason of its mistaken belief that it was functus officio and could not grant an adjournment.  However since the Tribunal would still have refused the adjournment, the applicant had suffered no practical injustice by reason of the error and therefore could not establish denial of procedural fairness.[43] Nonetheless the Tribunal failed to comply with s.425(1) of the Migration Act in that its failure to accede to the adjournment request denied the applicant a real and meaningful invitation to the hearing, and this was a jurisdictional error.[44]

    [40] [2012] FMCA 410.

    [41] [2012] FMCA 410 at [44].

    [42] [2012] FMCA 410 at [53].

    [43] [2012] FMCA 410 at [54].

    [44] [2012] FMCA 410 at [58] – [59].

  3. I considered the question of when a Tribunal decision is made in SZRLT v Minister for Immigration & Anor[45] (also decided prior to the Full Court decision in SZQOY).  In that case, the applicant filed an application for judicial review and an application for an extension of time 24 days out of time.  I refused the application for an extension of time since no satisfactory explanation had been given for the delay.[46] Further, there was no merit in the grounds of review so as to justify an extension.[47] In relation to s.477(3)(b), I observed that where a decision of the Tribunal bears two dates, one on the front of the written statement of reasons and the other on a certification stamp signed on behalf of the District Registrar, I was inclined to the view that the time under s.477(1) should be calculated to run from the later of those dates. An applicant could be confused by two different dates and suffer prejudice from the truncation of the limitation period.[48]  I observed that the issue is related to the question of when the Tribunal is functus officio, referring to SZQOY and SZQQC.

    [45] [2012] FMCA 724.

    [46] [2012] FMCA 724 at [21].

    [47] [2012] FMCA 724 at [25].

    [48] [2012] FMCA 724 at [33].

The present case

  1. The issue that arises in the present case did not directly arise in any of the case-law discussed above. The construction of s.430(2) in SZQOY is not inconsistent with the conclusion that the limitation period runs from the date when the Tribunal member completes the preparation of the written statement, and not from some later time.  The present case raises an issue not as to when the Tribunal is functus officio, but rather an issue as to the construction of “the date of the written statement” in s.430(2), for the purposes of the operation of s.477(3)(b). The date to which s.430(2) refers is “the date of the written statement”, not “the date when the Tribunal is functus officio” or “the date when the Tribunal has completed the review”.

  2. Section 430 does not impose any obligation to place a date upon the written statement. However s.430(2) proceeds upon an assumption that the date of the written statement will be readily ascertainable. That date is central to the operation of the deeming provision in s.430(2): the date of the written statement determines what is the date of “a decision on a review”. There is no provision directed to resolving what is the date of the written statement, say by deeming the date recorded by the Tribunal member to be the date of the written statement, or by deeming the date on a certification attached by the Deputy Registrar to be the date of the written statement.

  3. The question of construction of the expression “the date of the written statement” in s.430(2) in part turns upon the intention of the legislature in enacting s.430(2).

  4. In SZQOY, Cameron FM said that the legislative intention in introducing s.430(2), which replaced the previous procedure by which the Tribunal formally “handed down” its decisions, “concerned only the commencement of the limitation period [for notifying a written statement]”.[49]  On appeal Logan J said that the intention was to give precision to what is to be the date of the decision when the Tribunal avails itself of the alternative of notification to the parties by written rather than an oral means.

    [49] [2012] FMCA 289 at [41].

  5. Section 430A governs the notification of the written statement. Section 430A(1)(a) imposes a duty upon the Tribunal to notify the applicant by giving the applicant “a copy of the written statement prepared under subsection 430(1) … within 14 days after the day on which the decision is taken to have been made”. The duties in ss.430(1) and 430A(1)(a) are both imposed upon the Tribunal constituted by the single member. They are not duties imposed upon the Registrar of the Tribunal. Both subsections indicate that the function of the Tribunal in a review is not complete when the decision itself is made. Section 430A(1)(a) describes a duty of the Tribunal that follows the discharge of the duty to make a decision on the review. After the written statement has been prepared the Tribunal has a further duty under s.430(3) to return documents to the Secretary and give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based. Making a decision on a review is deemed to occur when the written statement has been prepared, but is distinct from notifying the parties to the review of the statement, and from returning documents.

  6. However s.430(2) serves the purpose not only of determining when the period for notification of a written statement commences, as Logan J accepted in SZQOY, but also the purpose of determining when the limitation period in s.477(1) for commencing judicial review commences.

  7. The fact that the Tribunal has functions in a review that are additional to its function of making a decision in the review does not indicate that the time limitation period in s.477(1) only runs from the date when all those functions are completed. Indeed s.477(3)(b) coupled with s.430(2) indicate that the reverse is the case. From all the functions of a Tribunal in a review s.477(1) selects the date of the migration decision as the critical date from which the limitation period runs. Pursuant to s.477(3)(b) this is the date of the decision on the review under s.430(2), which is the date when the written statement is prepared under s.430(1).

  8. The focus of s.430 is upon the function of the Tribunal constituted by a single member for a particular review. The written statement to which s.430(2) refers is the written statement which is the subject of s.430(1). Section 430(1) requires that “the Tribunal must prepare” the statement where “it makes its decision on a review”. Section 430 gives no function to the Registrar or Deputy Registrar. The date that the legislature must have intended to refer to in s.430(2) is the date when the Tribunal prepared the statement in relation to “its decision on a review”, in order to discharge its duty under s.430(1). It could not have been the intention of Parliament to refer to a function of the Registrar or Deputy Registrar. My observation in SZRLT as to resolution of the date of a written statement bearing two dates was made in obiter, as I acknowledged in referring to the issue as “academic”.[50]

    [50] [2012] FMCA 724 at [34]. The dates recorded by the Tribunal member and by an officer on behalf by the Deputy Registrar were the same.

  9. Further, the Migration Act does not give the Registrar or Deputy Registrar a function of certifying the authenticity of the written statement, or the date on which the Tribunal member made the statement. The certification process is an administrative procedure which is not required by the Migration Act and which the Deputy Registrar is free to cease. I would not, however, want to be taken to have advocated such a cessation, as the process provides evidence of when a decision is ready for despatch, which is relevant to considering when a decision is beyond recall.

  10. The date of the written statement for the purposes of s.430(2) is the date when the preparation of the written statement by the Tribunal member, to which s.430(1) refers, is completed. If the Tribunal member fails to record that date on the statement, or records an incorrect date, other evidence (such as records in the Tribunal’s internal electronic management system) may be relevant to establishing the date of the statement. The date when the Deputy Registrar performs an administrative act of certifying the statement may serve some administrative purposes of the registry. However it cannot determine the date when the Tribunal member completes the preparation of the written statement. The Deputy Registrar is not in a position to certify that the Tribunal member completed the preparation of the written statement on a particular date. Only the Tribunal member is in a position to state that date. The date recorded by the Tribunal member on the first page of the statement should be taken to be the date when the Tribunal member completed the preparation of the statement and hence is the date of the written statement for the purposes of s.430(2).

  11. The date to which s.430(2) refers is “the date of the written statement”, not “the date of certification of the written statement”. The date recorded by the Deputy Registrar beside the certification is likely to be the date of the certification. The date of the certification is not the date identified in s.430(1) and (2).

  12. The extrinsic material for the bill that introduced s.430(2) supports this construction. It was examined in detail by Cameron FM in SZQOY.[51] The original explanatory memorandum to the Migration Legislation Amendment Bill (No 1) 2008 (Cth) linked the amendment of s.430 to the amendment proposed for s.477, although the amendment to s.477 was ultimately enacted separately. That explanatory memorandum stated that identifying the date of the decision in the review as the date from which time runs would “provide greater certainty about when time starts to run for the purposes of judicial review”.[52]  No reference is made to certification of the date of the decision or to any function of the Registrar as the means for achieving certainty as to the date of the decision.  The explanatory memorandum to the Migration Legislation Amendment Bill (No 2) 2008 (Cth) repeated this purpose.[53]

    [51] [2012] FMCA 289 at [32]–[43].

    [52]  Explanatory memorandum to the Migration Legislation Amendment Bill (No 1) 2008 (Cth), [93].

    [53]  Explanatory memorandum to the Migration Legislation Amendment Bill (No 2) 2008 (Cth), [62], [63].

  13. Certainty as to the date from which the limitation period begins to run would not be achieved if time were calculated, in the alternative, from either the date recorded by the Tribunal member or the date when the Deputy Registrar certified the statement.  Nor would it be achieved by treating the later date of the dates (where they differ) as the date of the written statement.  This would mean that in some cases the date of the written statement is the date recorded by the Tribunal and in other cases it is not.

  14. In the present case the date when the written statement was prepared was 21 May 2012. That date is therefore the date of the decision on the review for the purposes of s.430(2). It follows that 21 May 2012 is also the date of the migration decision for the purposes of s.477(1) and s.477(3)(b). The 35 day limitation period therefore expired on 25 June 2012 and the judicial review application was filed out of time.

Conclusion

  1. I have now come to the view that for the purposes of s.477 of the Migration Act the Tribunal's written statement is dated by the presiding member on its cover. The fact that the statement may bear a later date when certified on behalf of the Tribunal's district registrar does not alter the fact that the statement was completed by the presiding member on the date indicated on the face of the decision record.

  2. While it is true that the Tribunal's reasons might be altered between the date of completion and the time when the decision becomes beyond recall, if that occurred then the date of the written statement would need to be altered if the statement was completed on a later day.  I have concluded that the better view is that the date of the written statement is the date selected by the presiding member on the face of it and not the date of certification on behalf of the district registrar.

  3. It follows that the application before the Court was filed 36 days after the date of the Tribunal's decision, and the application is incompetent. The applicant, having maintained the position that his application was filed within time has not sought an extension of time, and so there is no question of the Court's exercise of power under s.477(2) of the Migration Act.

  4. I will order that the declaration and notation made on 9 August 2012 be vacated.  I will further order that the application filed on 26 June 2012 be dismissed as incompetent.

  5. In consequence of the dismissal of the application, the Minister seeks an order for costs.  I received in relation to costs the affidavit of Laura Frances Weston made today.  The Minister's solicitor and own client costs have exceeded $11,000.  The Minister seeks costs on a party and party basis of $8,250.  The applicant considers it unfair for him to bear that portion of the Minister's costs that derive from argument over the competence of his application.  The litigation in that respect does have a public interest component in that there was an issue of doubt which required resolution.  The applicant also draws attention to the fact that I initially found that his application was competent, and he proceeded from that point to focus on his grounds of review. 

  6. In my view, having regard to the view initially taken by me on the issue of the competence of the application, and the fact that the Minister sought and was granted the opportunity to more fully argue that issue at a final hearing, and that the issue was an issue raising an important principle of general application, it would be unfair for the applicant, who has not in these proceedings had the assistance of any advice or legal representation, to bear fully the cost of the Minister's success on the preliminary issue.

  7. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,471 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  7 February 2013


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