SZUSR v Minister for Immigration
[2015] FCCA 3105
•23 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUSR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3105 |
| Catchwords: MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal failed to reasonably exercise a statutory discretion – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal constructively failed to exercise its jurisdiction – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 48A, 91R, 359B, 395C, 415, 418, 424, 424A, 424B, 424C, 425, 426A, 427, 430, 430A, 441A, 441C, 441G, 471, 476, 477, Part 7 Migration Regulations 1994 (Cth), reg.4.35 |
| SZNZU v Minister for Immigration & Anor [2010] FMCA 197 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 Yang v Minister for Immigration & Anor [2010] FMCA 890 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 1555 Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247; (2006) 155 FCR 333 Bunnag v Minister for Immigration and Citizenship [2008] FCA 357 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73; (2006) 152 FCR 592 SZHSQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1295; (2006) 155 FCR 159 Smith v R (1994) 181 CLR 338 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106 Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 SZTNL v Minister for Immigration and Border Protection [2015] FCA 463 SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 SZMDS v Minister for Immigration and Citizenship [2009] FCA 210 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Barrett v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 497 R v Criminal Injuries Compensation Board; Ex parte A [1999] UKHL 21; [1999] 2 AC 330 SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; ; (2007) 232 CLR 189 Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131; (2012) 206 FCR 25 Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240 Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422 Telstra Corporation Ltd v Kotevski [2013] FCA 27; (2013) 209 FCR 558 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22; (2015) 320 ALR 467 |
| Applicant: | SZUSR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1952 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 31 March, 15 and 21 April 2015 |
| Date of Last Submission: | 21 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms S A C Patterson |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 11 July 2014 and amended on 28 October 2014 is dismissed.
The applicant pay the first respondent’s costs as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1952 of 2014
| SZUSR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 11 July 2014 the applicant applied for an extension of time within which to make a competent application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the then Refugee Review Tribunal (now known as the Administrative Appeals Tribunal) (“the Tribunal”) which on 22 April 2014 affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.
Section 477(1) of the Act requires that any such substantive application be made to this Court within 35 days of the date of the Tribunal’s decision. The application was not made within this time. It was lodged 15 days late.
Section 477(2) of the Act provides discretion to this Court to extend time if it is satisfied that it is in the interests of the administration of justice to do so. The applicant has made an application in writing for the Court to extend time. The issue now, therefore, is whether the extension of time should be granted. The elements relevant to this are not exhaustive (SZNZU v Minister for Immigration & Anor [2010] FMCA 197 at [52] – [55]). However, as I identified in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44], some of the elements include the length of the delay, any satisfactory explanation for it, and the merits of the grounds in the proposed substantive application.
Evidence
In evidence before the Court is:
(1)A bundle of relevant documents filed and tendered by the Minister (“Court Book” – “CB”) (“RE1”).
(2)The affidavit of Charlotte Saunders, lawyer, made on 7 July 2014 with Exhibit CS-1 to the affidavit, subject to the following:
ii)[6] was not pressed.
iii)[12] – to be read as being solely limited to Ms Saunders’ understanding.
iv)[16] – to be read as being solely limited to Ms Saunders’ understanding.
v)[20] – the words: “…would take carriage of this matter” – to be read as being solely limited to Ms Saunders’ understanding.
vi)[22], [24] and [25]. The third party communications referred to there are relied on by the applicant only to the extent that the communication occurred.
vii)[27] the words “partially completed” – to be read as being solely limited to Ms Saunders’ understanding.
viii)[29], [34] and [35] to be read as being solely limited to Ms Saunders’ understanding.
ix)[42] – [82] were not read into evidence.
(3) A letter dated 26 November 2014 from the Minister’s solicitors to the applicant’s solicitors in response to a Notice to Admit Facts (“RE2”).
The Extension of Time
The Minister submitted that the application for the extension of time should be granted. The Minister agreed that the evidence revealed that a satisfactory explanation for the delay in making the application had been provided. Further, that there was no prejudice to the Minister in such an order being made. Ultimately, while the Minister maintained that there was no jurisdictional error in the Tribunal’s decision, the application as amended had raised an arguable case for the relief the applicant sought.
I did not consider the Minister’s position to be determinative. Ultimately, the discretion to extend time pursuant to s.477(2) of the Act is for the Court to exercise if it considers it is in the interests of the administration of justice to do so. However, I was satisfied during the hearing that the extension of time should be granted so as to allow full consideration of the grounds of the proposed substantive application, which had some reasonable prospects of success. I made the order to extend the time pursuant to s.477(2) of the Act. The hearing, therefore, proceeded on the basis of a final hearing of the grounds of the substantive application, as amended.
Application to the Court
The grounds of the application before the Court, as amended on 28 October 2014, are in the following terms:
“1. The Tribunal committed a jurisdictional error in that the Tribunal’s refusal to adjourn the review until either:
a. the applicant obtained alternative legal representation; or
b. there was confirmation that the applicant did not wish to have legal representation and did not wish to respond to the Tribunal’s letter dated 5 March 2014,
was, in the circumstances, legally unreasonable, or, in the alternative, amounted to a denial of procedural fairness.
Particulars
The relevant circumstances included the following matters:
i. After a hearing on 3 March 2014, the Tribunal sent the applicant and his then representative Jagrup Pangly of BMA Lawyers (BMA) a letter dated 5 March 2014, setting out information which the Tribunal considered would be part of the reason for affirming the decision under review, and inviting the applicant to comment (invitation).
ii. On 11 March 2014, BMA sought an extension of time to respond to the invitation, and informed the Tribunal that it was having difficulties getting in contact with the applicant due to his mental health issues.
iii. On 25 March 2014, BMA sought a further extension of time. BMA informed the Tribunal it had recently received documents concerning the applicant’s health, and that there was a volume of information to peruse in order to make further submissions. On 25 March 2014, the Tribunal did not grant a further extension of time “under the Act”, but advised that no decision would be made before 2 April 2014.
iv. On 2 April 2014, BMA Lawyers informed the Tribunal that it could no longer act for the Applicant because of a conflict of interest which had arisen. BMA Lawyers also informed the Tribunal that they had informed the Minister’s Department (Department), and that the Department had informed them that the Department ‘will be assisting the Applicant to obtain new legal representation’. BMA Lawyers requested the Tribunal to ‘adjourn this matter until the above client is able to seek alternative legal representation as we believe that this will be in the Applicant’s best interests’.
v. On 3 April 2014, the Tribunal sent the Applicant blank forms MR5 (‘Appointment of Representative/Appointment of Authorised Recipient form’) and MR6 (‘Change of Contact Details form’), with a covering letter requesting completion of one of the forms.
vi. On 7 April 2014, the Tribunal received by facsimile copies of both forms MR5 and MR6. The MR5 form was partially completed, including the in the section concerning authorised representatives, and signed. The MR6 form was partially completed and unsigned.
vii. On 9 April 2014 at 1:26 pm, by email from the Department to Fragomen, the Department requested Fragomen to represent the applicant.
viii. On 9 April 2014 at 1:28 pm, Fragomen replied to the Department’s email, confirming that it would take carriage of the matter.
ix. On 10 April 2014, the Department informed the Tribunal that the Applicant ‘had not appointed a new Rep or AR [authorised representative]’ (Tribunal file note dated 10 April 2014 at 12:18pm, and Tribunal’s Decision at [5], [37]).
x. On 14 April 2014 at 10:30 am, the Tribunal received, by email from the Department, a partly completed form MR6 (‘Change of Contact Details form’). The form had been signed by the applicant on 9 April 2014. Both the ‘Applicant contact details’ and ‘Authorised recipient contact details’ sections were partially completed.
xi. Between 10 April and 22 April 2014, Fragomen communicated with the applicant, persons at Villawood Immigration Detention Centre (VIDC), and BMA in order to take carriage of the applicant’s matter.
xii. On 22 April 2014, Fragomen sent an email to the Tribunal attaching an Appointment of Representative form, a Freedom of Information Request, and a request for time to respond to the invitation.
xiii. On 22 April 2014, the Tribunal purported to make its decision.
xiv. The Tribunal had before it a report from a social worker dated 4 February 2013, stating that the applicant presented with symptoms suggestive of post-traumatic stress disorder with severe anxiety. (Tribunal’s Decision at [3])
2. Further, or in the alternative, the Tribunal committed a jurisdictional error in that, in refusing to adjourn the review (and proceeding to purport to make its decision on 22 April 2014) on the basis of incorrect or incomplete information, the Tribunal:
a. failed to take into account relevant considerations; or
b. in the alternative, denied the Applicant procedural fairness; or
c. in the further alternative, constructively failed to exercise its jurisdiction.
Particulars
i. The applicant repeats the particulars (i) to (xiv) set out in Ground 1 above.
ii. The Tribunal’s refusal to adjourn the review until the applicant had appointed new lawyers, and its conduct in proceeding to make its decision, was based on information provided by the Department on 10 April 2014 (referred to at particular (ix) in Ground 1 above) that the applicant had not appointed a new representative: see Tribunal’s Decision at [5], [37].
iii. That information was incorrect, or incomplete, because on 9 April 2014, the Department had asked Fragomen to represent the Applicant and Fragomen had agreed to do so.
3. Further, or in the alternative, the Tribunal committed a jurisdictional error when it decided, after receiving a request from Fragomen on 22 April 2014 to postpone its decision, that it was functus officio and had no power to take any further action on the review.
Particulars
a. As at 22 April 2014, the applicant had not provided to the Tribunal any fax number or email address in connection with his review application.
b. On 22 April 2014 at 11:43 am, the Tribunal sent a fax addressed to ‘Business Manager, Villawood IDC Gatehouse’ which attached a copy of the Tribunal’s purported decision and correspondence, and stated, ‘Please arrange for the immediate hand delivery of the attached decision … to Mr [SZUSR] on behalf of the Tribunal.’
c. On 22 April 2014 at 11:52 am, the Tribunal sent an email to the address [email protected], copied to Kam KUMAR, with the subject, ‘Attention – Detention Notification – [SZUSR] [SEC = UNCLASSIFIED’, attaching a filed named, “[SZUSR]_Decision.pdf”.
d. On 22 April 2014, the Tribunal sent a letter to the Secretary of the Department, stating, ‘Under section 430A of the Migration Act, I am enclosing a copy of the Tribunal’s statement under section 430 recording its decision…’ in the case of SZUSR.
e. On 22 April 2014 at 3:07 pm, Fragomen sent an email to the Tribunal ‘IMAcorrespondence’, attaching:
i. An Appointment of Representative Form, signed by the applicant, nominating Fragomen as his representative and authorised recipient;
ii. A Freedom of Information request seeking documents on the Tribunal’s file relating the applicant (FOI documentation).
iii. A letter dated 22 April 2014 stating that the applicant would be prejudiced if he did not have the opportunity to respond to the invitation and to review his FOI documentation, and requesting that the Tribunal not proceed to determine the applicant’s matter until at least 7 days after receipt of his FOI documentation.
f. On 22 April 2014 at 3:39 pm, the email and attachments from Fragomen referred to in particular (e) above were forwarded by ‘IMAcorrespondence’ to Edward Chiu.
g. On 23 April 2014 at around 4:00 pm, the applicant received a copy of the Tribunal’s purported decision.
h. Between 4:39 and 5:08 pm on 23 April 2014, Fragomen received a letter (by fax) from the Tribunal and addressed to the applicant stating that:
i. the Tribunal had received Fragomen’s ‘submission’ (referred to in particular (e) above) at 3:39 pm on 22 April 2014;
ii. the ‘request was carefully considered. However, the Presiding Member has decided not to reopen this case.’
iii. the Tribunal had made its decision on 22 April 2014 and that notification was ‘sent to you by fax’ to the Villawood Immigration Detention Centre at 11:43 am;
iv. the Department ‘was notified’ of the decision on 22 April 2014 at 11:52 am; and
v. ‘Once the Tribunal has made a decision under the Migration Act 1958, it becomes functus officio and has no power to take any further action on the review.’
4. The Tribunal misconstrued or misapplied s 91R(2) of the Act.
Particulars
a. The Tribunal found that the applicant ‘may be remanded in custody and that he may face up to a fortnight in gaol on his return to Sri Lanka’: Tribunal’s Decision at [47].
b. The Tribunal also ‘accepted that prison conditions in Sri Lanka are poor due to overcrowding’ and that the applicant will experience ‘pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka’: Tribunal’s decision a [56].
c. Taking account of the Tribunal's findings at (a) to (b) above, the Tribunal should have found that, or alternatively failed to consider whether, the applicant faced serious harm in the form of a ‘threat to his ... liberty’: WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (3 September 2014).”
Background to the Grounds of the Application
The applicant is a citizen of Sri Lanka who arrived in Australia by boat, without authority, on 31 May 2012. Following the Minister’s intervention pursuant to s.48A(2) of the Act, he ultimately applied for a protection visa. The claims to fear harm on return to Sri Lanka were based on his Tamil ethnicity, an imputed political opinion because of his support of the LTTE, and because of his membership of particular social groups, arising if he returned to Sri Lanka from a western country as a failed asylum seeker.
During the time relevant to the matters below, the applicant was held at the Villawood Immigration Detention Centre. The parties addressed the relevant factual background to grounds one to three in both written and oral submissions. Both provided a chronology of events (see applicant’s submissions [14] – [23] and respondent’s submissions at [31] – [41]).
The applicant’s chronology is as follows, and provides sufficient background to the issues for consideration in grounds one to three:
“[14] A chronology of events, from the Applicant’s arrival in Australia until the day after the Tribunal’s decision (Chronology) is set out in Annexure A to these submissions. The factual background relevant to Grounds 1 and 2 occurred from 3 March 2014, when the Tribunal held a hearing, until 22 April 2014, when the Tribunal decided to proceed to make its decision.
[15] By way of summary, the facts are these. In the Tribunal proceedings, the Applicant was originally represented by BMA Lawyers. The Tribunal held a hearing on 3 March 2014. On 5 March 2014, the Tribunal sent BMA Lawyers an invitation to comment on information (Invitation), and requesting a response by 12 March 2014. On 11 March 2014, BMA Lawyers sent an email to the Tribunal requesting until 26 March 2014 to respond to the Invitation, because they were having difficulty getting in contact with the Applicant largely due to his mental health problems, and also because they were in the process of obtaining further health documents. On 12 March 2014, the Tribunal granted an extension of time in which to respond to the Invitation, to 26 March 2014. On 25 March 2014, BMA Lawyers sent an email to the Tribunal stating that they had received documents pertaining to the Applicant’s health only that week, and sought an extension until 2 April 2014 to make further submissions. On the same day, the Tribunal responded to BMA Lawyer’s email, stating it will not be granting a further extension of time ‘under the Act’, but advising that a decision on the review will not be made until after 2 April 2014, as requested.
[16] On 2 April 2014, BMA Lawyers sent a letter (by fax) to the Tribunal stating that BMA Lawyers was no longer able to represent the Applicant, following matters which transpired leading to a conflict of interest. The letter then stated:
‘We confirm that we have brought this conflict to the attention of the Department of Immigration and Border Protection and they have advised us that they will be assisting the Applicant to obtain new legal representation. Accordingly, we kindly request that the Respected Member adjourn this matter until the above client is able to seek alternative legal representation as we believe that this will be in the Applicant’s best interests.’
[17] On 3 April 2014, the Tribunal sent to BMA Lawyers a letter addressed to the Applicant, requesting the Applicant complete one of:
(a) An Appointment of Representative form; or
(b) A Change of Contact Details form.
[18] On 7 April 2014, the Tribunal received by fax copies of both the Appointment of Representative form and the Change of Contact Details form. However, the Appointment of Representative form was partially completed, and the Change of Contact Details form was partially completed, and unsigned.
[19] On 8 April 2014 at around 11.14 am, a Tribunal Officer (Mr Chiu) had a telephone conversation with a Department case officer (Mr Kumar) about the Applicant’s ‘failure to correctly complete’ the forms, during which Mr Kumar said that Mr Chiu could email the forms, and Mr Kumar would instruct the Applicant to complete the form correctly. At 12.47 pm, Mr Chiu sent an email to Mr Kumar attaching the Change of Contact Details form.
[20] On 9 April 2014 at 1.26 pm, a different officer of the Department (Mr Smith) sent an email to the Applicant’s current representatives, Fragomen, enquiring whether Fragomen could represent the Applicant. Fragomen responded at 1.28 pm, confirming acceptance of the referral.
[21] On 10 April 2014 at around 12.18 pm, Mr Chiu (the Tribunal officer) had a telephone conversation with Mr Kumar, the Departmental officer, and Mr Chiu recorded a file note as follows:
‘Mr Kamlesh Kumar (DIBP case officer) called to advise that he would be forwarding today or tomorrow the RA’s completed change of contact details form withdrawing Ms Jagrup Pangly (BMA lawyers) as his Rep/AR.
He also advised that the RA was not aware that Ms Pangly had withdrawn her representation but that he has nonetheless withdrawn her as his Rep/AR. Mr Kumar also advised that the RA had not appointed a new Rep or AR.’
[22] On Monday, 14 April 2014 at 10.30 am, Mr Kumar sent an email to Mr Chiu, attaching a Change of Contact Details form, and explaining that the delay in sending the form was due to Mr Kumar having been away. The attached Change of Contact Details form had been signed by the Applicant on 9 April 2014. Both the ‘Applicant contact details’ and the ‘Authorised’ recipient contact details” were partially completed.
[23] Although not strictly relevant to Grounds 1 and 2, it is worth noting, for completeness, what steps Fragomen took after receiving the referral from the Department on 9 April 2014. (These steps are detailed in the Chronology in Annexure A.) Between 10 April 2014 and 17 April 2014, Fragomen was taking steps to contact the Applicant to explain that his case had been transferred to Fragomen, to obtain BMA Lawyers’ file (which required the Applicant to sign an authority to transfer the file), and to arrange for the Applicant to complete an Appointment of Representative form to provide to the Tribunal. A fax containing an Appointment of Representative form was received by Fragomen at 5.03 pm, or possibly 6.00 pm, on 17 April 2014. Ms Saunders did not receive this fax until the next business day, which was 22 April 2014 (because the Easter long weekend fell on 18-21 April 2014). Ms Saunders received the fax at 10.50 am on 22 April 2014, and at 3.07 pm that day sent an email to the Tribunal enclosing the Appointment of Representative form and requesting that the Tribunal not proceed to a decision. However, the Tribunal had in fact already signed its statement of decision and reasons, several hours earlier that day. (Ground 3 of the Amended Application, addressed below, challenges the Tribunal’s conclusion that it was functus officio before it received Fragomen’s request.)”
[Footnotes omitted].
As can be seen, the background set above dealt with certain events that occurred after the applicant’s arrival in Australia. I understood that there was no dispute between the parties as to the time or occurrence of these events. The dispute arose in relation to the characterisation of what occurred, or was reported to have been said, and how these matters were communicated to, and understood by, the Tribunal.
Consideration
Ground One
Ground one asserts jurisdictional error said to arise from the Tribunal’s refusal to adjourn the review. The particulars direct attention to the Tribunal’s letter of 5 March 2014, sent after the Tribunal hearing (on 3 March 2014) to the applicant and his then lawyers (“BMA”). The letter is reproduced at CB 286 to CB 289. It states that the Tribunal invited the applicant to comment on, or respond to, certain information which the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision. The applicant was told that if the Tribunal did not receive a response by 12 March 2014, and if no application for an extension of time was made, it would proceed to make its decision.
On 11 March 2014, BMA sought an extension of time until 26 March 2014 (CB 290) to respond. BMA raised the issue of the difficulties in obtaining instructions because of the applicant’s “mental health problems”. The Tribunal granted the extension of time until 26 March 2014.
I pause to note here that a copy of that letter is not in the Court Book. This, as will be seen below, appears to be one a number of omissions of relevant documents left out of the Court Book. I have proceeded to address those “omissions” with reference to CS–1, noting, of course, the various bases on which much of that document was admitted into evidence (see [4](2) above).
BMA wrote to the Tribunal (by email) sent on 25 May 2014 seeking a further extension until 2 April 2014 (see CS–1 at page 90). On 25 March 2014, as the Tribunal recorded in its decision record ([5] at CB 318, and see CS‑1 at page 91), BMA was advised by the Tribunal:
“…that a further extension of time could not be granted under the Act (see Yang v Minister for Immigration & Anor [2010] FMCA 890 at [32] per Lucev FM (“Yang”)) but that a decision would not be made on the review until after 2 April 2014.”
On 2 April 2014, BMA sent, by facsimile, a letter to the Tribunal in the following terms (CB 92 and see CS–1 at page 91):
“…We refer to the above client and his RRT hearing before Respected Member Giles Short on 3 March 2014.
We wish to advise the Tribunal and Respected Member that we are no longer able to represent the above client following matters which have transpired leading to a conflict of interest.
We confirm that we have brought this conflict to the attention of the Department of Immigration and Border Protection and they have advised us that they will be assisting the Applicant to obtain new legal representation. Accordingly; we kindly request that the
Respected Member adjourn this matter until the above client is able to seek alternative legal representation as we believe that this will be in the applicant's best interests
Should you have any queries, please do not hesitate to contact our office.”
There is a dispute between the parties as to how the contents of this letter should be read and understood. The applicant says that this was a request for an adjournment until legal representation was obtained for the applicant. The Minister says that this was a request that the applicant be given a reasonable opportunity to obtain alternative legal representation (see further below).
On 3 April 2014 a Tribunal officer wrote to BMA (letter sent by facsimile) (CB 293). The focus of the letter was “Confirmation of Withdrawal of Authorised Recipient”. The letter enclosed another letter for the applicant (CB 294 to CB 295). Attached to that letter were two forms (CB 296 to CB 299):
“Appointment of Representative / Appointment of Authorised Recipient
…
Change of Contact Details”
The letter noted that the applicant had nominated a lawyer from BMA as his “authorised recipient” for the purpose of receiving correspondence, and in light of the letter from BMA, asked the applicant to complete one of the two enclosed forms.
I pause here to note that while BMA’s notice was in relation to not being able to represent the applicant, the Tribunal officer’s letter focussed on the narrower question of the “authorised recipient” for the purposes of receiving correspondence, in relation to the review. However, in its decision record, the Tribunal understood BMA’s correspondence as being relevant to the broader matter of representation ([5] at CB 318).
It appears that on 7 April 2014, the applicant, contrary to the Tribunal’s request, sent back both forms (see CS–1 at page 96 to page 97 and page 98 to page 99 respectively). In the “first” form, the applicant completed that part of the form asking for details of his representative/ authorised recipient with his own personal details (see also CB 300 to CB 301).
Before the Court, the submissions on behalf of the applicant were that he did not understand what he was doing, in that he did not understand the distinction between an “applicant” and a “representative/ authorised recipient”. The submissions drew attention to the second form (“Change of Contact Details”) which remained unsigned (CS–1 at page 99). Further, that that part of the form asking for “representative contact details”, “Cancellation of authorised recipient”, and “Cancellation of representative”, remained blank.
The parties took a different view as to how this should be understood. The applicant’s submission was that he did not understand what he was doing and did not understand the nature of the forms he was filling out. This was in answer to the Minister’s view that in completing that part of the form that asked for details of a “representative/ authorised recipient” the applicant could be seen, objectively, to be notifying the Tribunal that he had withdrawn his authorisation for BMA to represent him and that he was now self-represented (the Minister’s view also needs to be understood and seen with regard also to a form signed by the applicant on 9 April 2014 – see at [36] below).
On 8 April 2014, a Tribunal officer reported, in a “case note”, the following (CB 304):
“…Contacted Mr Kamlesh Kumar (DIBP case officer for [the applicant]) with regard to the RA’s failure to correctly complete the Change of Contact Details and Appointment of Rep/AR forms.
Mr Kumar advised that I could email him the form and he would forward it to the RA and instruct him to complete it correctly. Form has now been emailed as directed.”
The applicant’s submission was that this supports his position, in that the Tribunal recognised that the forms had not been “correctly” completed and, therefore, could not be taken to convey any notice by the applicant that he had withdrawn authority to his previous representative and had elected to be self-represented.
Later on 8 April 2014, the same Tribunal officer sent an email to the Departmental officer in the following terms (CB 305):
“Dear Kam
As discussed could you assist in forwarding the attached Change of Contact details form to [the applicant] and ensure he completes the form (second page) to confirm his cancellation of Representative/Authorised recipient or confirm whether he has appointed a new Representative/Authorised recipient…”
I note that while the above chronology is relevant to ground one, it is also relevant to ground two. By that ground, the applicant asserts that the Tribunal fell into jurisdictional error because it refused to adjourn the review and proceeded to a decision on the basis of what was described as “incorrect or incomplete information”. The actual jurisdictional error was said to be either a failure to take into account relevant considerations, or a denial of procedural fairness, or a constructive failure to exercise jurisdiction (see further below).
On 9 April 2014 an officer of the Department sent an email to Fragomen Solicitors. Relevantly, it stated (CS–1 at page 102):
“The following client has be identified as part of a conflict of interest and is no longer able to be assisted by their current provider.
…
This client has already had their RRT hearing and is currently just waiting on further information and an outcome from the RRT.
The assistance for this client will only be funded as a partial review service.
Can you please confirm whether or not you will be able to assist.
If you have any questions, please let me know.
Thanks
Dave Smith
Immigration Advice & Application Assistance Scheme
Community Programs & Children Division
Department of Immigration and Border Protection.”
The immediate reply was (CS–1 p.104):
“…Thanks for the Referral.
We’ll get in touch with him at Villawood…”
I interpose again here to note a dispute between the parties as to how this exchange should be understood. The applicant says that his case was referred to solicitors, under a funding scheme (the Immigration Advice and Application Assistance Scheme - “IAAAS”) then administered by the Department, by an officer from the section within the Department administering that scheme, and that Fragomen indicated acceptance of the referral (the same document is at CS–1 at page 107). For this reading of the emails, the applicant also relied on what appears on the Department’s “IAAAS” documentation (CB 110):
“If you want IAAAS assistance and are elleigble to receive it, the department will allocate you an IAAAs provider (a registered migration agent or a qualified person). The IAAAS provider will interview you and provide assistance, including
- Explaining immigration procedures.
- Assisting with the preparation and lodgement of a request for a protection obligations determination and keeping you informed of progress and the outcome.
- Liaising with the department during the protection obligations determination process.”
In short, the argument is that the Department had “allocated” Fragomen to represent the applicant through the IAAAS.
The Minister says that Fragomen’s response was not that they accepted the case, but simply that they would contact the applicant. The Minister relies on subsequent telephone exchanges between a Tribunal officer and the applicant’s Departmental case manager.
This exchange occurred on 10 April 2014, that is, the day after the email exchange with Fragomen (CB 306) (the same document is at CS–1 at page 107):
“Mr Kamlesh Kumar (DIBP case officer) called to advise that he would be forwarding today or tomorrow the RA’s completed change of contact details form withdrawing Ms Jagrup Pangly (BMA lawyers) as his Rep/AR.
He also advised that the RA was not aware that Ms Pangly had withdrawn her presentation but that he was nonetheless withdrawn her as his REP/AR. Mr Kumar also advised that the RA had not appointed a new Rep or AR.”
The applicant’s position is that the information provided by the Department to the Tribunal on 10 April 2014 was “incomplete”. This is said to be because on 9 April 2014 the Department had appointed Fragomen as the applicant’s new representative. Plainly, this proposition depends on a particular reading and understanding of the email exchange between the Department and Fragomen on 9 April 2014.
It is to be noted that following the conversation between Mr Chiu (the Tribunal officer), and Mr Kumar (the Department case officer) on 8 April 2014, Mr Chiu send an email to Mr Kumar in the terms set out at [26] above.
That “Change of Contact Details” form, on the evidence, must have been the form originally sent by facsimile, in total blank form, to the applicant’s then lawyers (BMA) on 3 April 2014, and which was returned to the Tribunal partially completed (although without signature) by the applicant on 7 April 2014 (CB 300 to CB 301 and CS–1 at page 98 to page 99).
Before the Court, the applicant directed attention to the email of 14 April 2014 from Mr Kumar to Mr Chui (CS–1 at page 114). The applicant now says this email attached, at least, that part of the previously incomplete “Change of Contact Details” form, said to have been signed by the applicant on 9 April 2014 (CS–1 at page 117.5), but which was not sent by Mr Kam to the Tribunal until 14 April 2014 (the date of his email at CS–1 at page 114).
To make out ground one, that is, that the Tribunal’s refusal to adjourn the review was unreasonable, the applicant relied on the principles set out in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”), and as further explained by the Full Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 (“Singh”). In essence, the submission was that the Tribunal had a discretionary power to adjourn the review pursuant to s.427(1)(b) of the Act. However, the exercise of that power, or the refusal to adjourn, must be legally reasonable. Unreasonableness may be found where, in essence, the decision “lacks an evident and intelligible justification”.
The applicant also relies on Singh for the proposition that, where the Tribunal gives reasons for a decision as to whether to exercise such a power, the question of reasonableness is to be assessed by the Court with reference only to these reasons. The applicant says that in the current case, the Tribunal gave the following reasons ([5] at CB 318):
“In a further message dated 25 March 2014 the applicant's representatives said that they had only received the documents pertaining to the applicant's health that week and that they requested an extension of one week. They were advised that a further extension of time could not be granted under the Act but that a decision would not be made on the review until after 2 April 2014. On that day the applicant's representatives advised that they were no longer able to represent the applicant following matters which had transpired leading to a conflict of interest. They said that they had been advised that the Department would assist the applicant to obtain new legal representation. However the Tribunal has since been advised by the applicant's case officer in the Department that the applicant has not appointed a new representative and the applicant has confirmed this in writing.”
The applicant says that the Tribunal gave only one reason for not adjourning the review. That is, that the applicant had not appointed a new representative. That is said to not be, in the circumstances, an intelligible justification for the refusal.
Those circumstances are said to be as follows. First, the applicant’s request for an adjournment was sought on the basis of the Tribunal adjourning the review until the applicant had a “new” representative. The Tribunal said that it had before it documents that showed that, as at 10 April 2014, the applicant did not have such a “new” representative.
Second, the applicant had difficulty in understanding the forms that were sent to him for completion. This was said to be evident from his “inability” to complete the forms (see above at [21] – [23]).
Third, there was material before the Tribunal that the applicant suffered from a mental illness and had limited intellectual capacity to participate in the Tribunal hearing. This was said to “reinforce” the reason BMA requested an adjournment until he could obtain alternative representation.
Fourth, the Tribunal had written to the applicant inviting his comment on, or response to, certain information. There was nothing in the BMA requests for the extension of time to say that the applicant did not want to comment or respond.
In all, therefore, there was no intelligible justification for the Tribunal’s refusal to adjourn. Further, the applicant argues that the matters set out immediately above also amounted to a denial of procedural fairness, in that the applicant was denied the opportunity to respond.
The Minister responded with two alternate arguments. First, the Tribunal’s obligation pursuant to s.424A of the Act was not enlivened and, therefore, there was no requirement for the Tribunal to send the letter of 5 March 2014 (reproduced at CB 285 to CB 289). In this light, therefore, the Tribunal’s decision on 22 April 2014 to proceed to finalise the review was not unreasonable, or procedurally unfair.
The second response is that whatever the situation as to the letter, the Tribunal’s decision was not, in the totality of the circumstances presented, unreasonable or procedurally unfair.
It is convenient to deal first with the second of the Minister’s responses which deals directly with the applicant’s case as pleaded and, importantly, argued before the Court.
In Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41], Wigney J summarised the relevant principles to be drawn from Li and Singh. Amongst those principles the Court set out (at [41](f)):
“The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].”
The disposition of the applicant’s ground is to be found, by having regard to the relevant statutory context, and the entirety of the relevant factual context in which reasoning expressed at [5] of the Tribunal’s decision record arose (at CB 318).
The applicant argues that the letter of 5 March 2014 was sent pursuant to s.424A of the Act. I turn first to consider the circumstances presented in this case in that light.
Section 424B(2) of the Act is of relevance here, which is in the following terms:
“If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.”
There was no dispute that, at the relevant time, the applicant was in immigration detention. The prescribed period, in these circumstances, is seven days after the detainee received the invitation to comment or respond (reg.4.35(2)(b)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”). In the current circumstances, the letter was sent by facsimile transmission to the applicant’s authorised recipient (see CB 285). Section 441A(5) of the Act provides that the Tribunal may send such a document by facsimile. Section 441C(5) provides that, in these circumstances, the letter was said to have been received at the end of the day of transmission. That is, 5 March 2014.
The letter was sent to the authorised recipient, and s.441G(2) of the Act provides that in giving the letter to the authorised recipient, the Tribunal is taken to have given it to the applicant. In these circumstances, the applicant had until 12 March 2014 to respond. The Tribunal noted that in its letter (CB 289).
As set out above, on 11 March 2014, BMA sought an extension of 14 days within which to respond. The Tribunal granted this extension. This meant that the applicant then had until 26 March 2014 to respond to the Tribunal’s letter.
As set out above, on 25 March 2014, BMA made another request for an extension of time. This was for a period of a further week until 2 April 2014.
The Tribunal responded on the same day (see CS-1 at page 90):
“…Dear Ms Pangly
Please be advised that the Tribunal will not be granting a further extension of time under the Act, however the Member advises that a decision on the review will not be made until after 2 April 2014 as requested.
Kind Regards,
Edward Chiu…”
There are three matters relevant at this point. First, the above advice from the Tribunal officer to BMA was set out, and explained by the Tribunal, in its decision record (see the first half of [5] at CB 318).
Although the Tribunal did not specifically refer to s.424B(4) of the Act, an inference may be drawn that the Tribunal understood it was bound by the relevant legislation. Section 424B(4) of the Act is in the following terms:
“If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.”
That “further prescribed period” is set out in reg.4.35B(2) of the Regulations:
The period by which the Tribunal may extend the prescribed period:
(a) commences when the person receives notice of the extended period; and
(b) ends at the end of:
(i) 14 days after the day the person receives notice of the extended period; or
(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.”
There is nothing in the legislative or regulatory scheme to permit a further extension of time. There was no power for the Tribunal to further extend what was the extended period already allowed.
As set out in its decision record, the Tribunal relied on Yang v Minister for Immigration & Anor [2010] FMCA 890 at [32]:
“The Migration Act only permits the Tribunal to extend the period of time for provision of additional information for a further prescribed period of 28 days after the initial prescribed period of 28 days. Therefore, even if the Tribunal’s letter of 1 July 2010 had advised Mr Yang that it had extended the time for him to provide the information as to satisfactory IELTS test results, that extension of time could only have been granted for the prescribed period of 28 days after Mr Yang received the Tribunal’s letter. Any extended period would have expired before Mr Yang was to sit a further IELTS test on 9 October 2010. There is no jurisdictional error in refusing to extend time to a time which would not allow the relevant criteria to be met in any event.”
While Yang dealt with s.359B(2) of the Act, this is in identical terms to s.424B(2) and (4) of the Act. That matter is not binding on this Court, however, I cannot see that it is plainly wrong. In that circumstance it is appropriate to follow it in the current case (in any event, see further below).
Second, the Minister submitted that the Tribunal’s willingness as at 25 March 2014 to wait until 2 April 2014 to receive the response to its letter, was not an exercise of the more general power found in s.427(1)(b) of the Act to adjourn the review from time to time. Rather, it was simply a reflection of a willingness to receive documents provided “late” (see Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 1555).
In these circumstances the Tribunal’s power, pursuant to s.424C(2) of the Act, to proceed to make a decision was enlivened, given that the applicant had not given his response or comments by the end of the extended prescribed period, which was the time available to him to give his comments or response. That is, after 2 April 2014 that time had passed.
The Minister submitted that the power in s.427(1)(b) of the Act, which he described as a general power, needed, in the current circumstances, to be read subject to the operation of s.424B(2) and (4) of the Act and s.424C(2) of the Act (see Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 (“Hasran”) at [46] – [48]). That case dealt with s.359A of the Act, which is analogous to s.424A of the Act. The Court held that an extension of time could not be granted after the end of the prescribed time. That is, the Tribunal’s discretion to extend time is spent if a request for an extension is made after the expiry of the prescribed time. I note that an important part of the Court’s consideration in Hasran (and see the reference to M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247; (2006) 155 FCR 333) was the relevant language of s.359B(4) of the Act, which I accept, as the Minister submits, is in similar terms to s.424B(4) of the Act.
In my view, however, the assistance of Hasran to the Minister’s case is confined. Hasran assists the Minister in relation to his submission that the power to grant an extension of time within which to respond to the s.424A letter ended after 26 March 2014. That is, after the end of the extended period for responding. At that point the Tribunal could proceed to make its decision.
However, in the current case, BMA sought a further extension of time on 25 March 2014. That is, before the extended time had passed. In these circumstances Hasran, for the reasons set out above, is not of assistance to the Minister’s argument as it relates to the request of 25 March 2014.
Third, and however, the applicant’s attack now does not stem from the request of 25 March 2014, but from the later request from BMA of 2 April 2014. The applicant’s allegation of unreasonableness and a failure of procedural fairness, while obviously set in the factual context outlined above, focuses on the Tribunal’s decision as it appears at the “second” part of [5] of its decision record (at CB 318).
To summarise the above, and in relation to the request of 2 April 2014, the Tribunal sent a letter to the applicant on 5 March 2014. The letter invited his comments or response to certain information in the letter. The period prescribed for his response ended on 12 March 2014. The Tribunal employed the statutory and regulatory provisions available, and agreed to the extension of time for this response following a request that it do so. This extended period ended after 26 March 2014.
The issue raised by the applicant’s ground is whether the refusal to adjourn the review with the effect of further extending time, following such a request made on 2 April 2014, was unreasonable, and a failure of procedural fairness to the applicant in the circumstances. By implication, this also raises the question as to whether it was open, in the circumstances, to proceed to make a decision on 22 April 2014 pursuant to s.424C(2) of the Act.
A number of matters flow from this. First, while the applicant’s attack focussed on what it says was the Tribunal’s unreasonable refusal to exercise the power to adjourn the review, it is important to also note the Tribunal’s exercise of the discretion to proceed to a decision in light of that refusal.
The Minister, as set out above, said that if the letter of 5 March 2014 is seen as a letter sent pursuant to, and because s.424A of the Act was enlivened, then given the matters set out above, it was reasonable of the Tribunal to proceed to making its decision.
The use of the word “may”, as it appears twice in s.424C of the Act, emphasises the discretionary nature of the power set out in that section. However, the Minister argued that s.424C of the Act has the character of being a specific recognition by the legislature that the Tribunal has the power to proceed to a decision without waiting for a late response to an invitation issued under s.424A(1) of the Act.
The Minister proposed, at least, three key features of s.424C of the Act. One, there is no provision, nor does s.424C of the Act call, for any inquiry by the Tribunal as to the reason or reasons that an applicant did not provide a response or comments on the information (Bunnag v Minister for Immigration and Citizenship [2008] FCA 357 (“Bunnag”) at [77] – [79]).
This submission was made by the Minister, in part, to answer the applicant’s attack that the Tribunal did not consider or inquire into such issues as the applicant’s capacity and mental illness.
I agree with the Minister that while the Court’s focus in Bunnag was on s.395C, the relevant reasoning there applies to the analogous s.424C of the Act (the Minister also sought to draw on NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045).
Two, the Minister relied on Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73; (2006) 152 FCR 592 (“SZFHC”) at [38] – [39] (dealing with s.426A of the Act) for the proposition that the Tribunal was not required to make inquiries of the applicant before proceeding to a decision. While SZFHC dealt with the discretion in s.426A of the Act, the Minister argued that that section used language not dissimilar, in context, and consequence, to s.424C(2) of the Act.
Three, that in exercising the discretion under s.424C(2) of the Act. The Tribunal was under no obligation to provide reasons for bringing the review to an end without waiting for a response to the s.424A letter (with reference to SZHSQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1295; (2006) 155 FCR 159 at [60]). Further, that there is no requirement in s.430 of the Act (dealing with the Tribunal’s statement of reasons for its decision on the review) to set out reasoning for exercising the discretion pursuant to s.424C of the Act.
BMA’s letter of 2 April 2014 requires close reading as to the meaning and context (see further below). The importance of this, in the current case, is emphasised with reference to s.424C and s.427(1)(b) of the Act. The questions that arise in the dispute between the parties is whether what BMA asked for on 2 April 2014 was done, and can be understood to be, in the context and sequence of events following the invitation sent pursuant to s.424A of the Act, or whether BMA’s request of 2 April 2014 required the Tribunal to consider the exercise of the discretion to adjourn the review pursuant to s.427(1)(b) of the Act.
It is to be noted that the applicant’s ground, and his written submissions, made no mention of s.427(1)(b) of the Act. However, in the current consideration, based on the supposition that the invitation was a s.424A letter, and the consequences of that as outlined above, the only other relevant power to adjourn the review following the 2 April 2014 letter from BMA, was to be found in s.427(1)(b) of the Act.
In the context of s.424A and s.424C of the Act, the Minister argued that the specific power in s.424C of the Act should not be seen to be “overridden” by any “general” power in s.427(1)(b) of the Act. I understood the Minister to rely on the principle of “generalia specialibus non derogant”. That is, the specific provision in s.424C of the Act should, where there is conflict between the two, prevail as the applicable and relevant statutory provision rather than a more general provision (see Smith v R (1994) 181 CLR 338 at 348).
The Minister’s argument was that if s.427(1)(b) of the Act were to prevail then this would effectively have the consequence of the Tribunal being able to “sidestep” the clear prescriptions set out in s.424B(4) and s.424C(2) of the Act. Further, that this would have important consequences, for example, for such provisions as s.425(2)(c) of the Act. That is, where s.424C(1) or (2) of the Act applies to an applicant, the Tribunal’s obligation to invite that applicant to a hearing pursuant to s.425(1) of the Act could not apply. If s.427(1)(b) of the Act were to apply, then it could serve to frustrate the provisions of s.424C(2) of the Act where an applicant who is invited to give a response to information fails to do so within the prescribed time and then insists on a hearing. If the Tribunal agrees to this s.424C(2) of the Act is reduced in its operation. I agree with the Minister that a statutory construction that says s.427(1)(b) of the Act is to prevail should not be accepted.
Finally, this leads to the central factual dispute which is dispositive of ground one. The applicant says that the BMA request of 2 April 2014 is not a request for more time to respond or comment on the Tribunal’s s.424A letter of 5 March 2014.
Rather, that having regard to the terms of that request, and the circumstances of the applicant’s capacity and “mental illness”, this was a request to adjourn the review so that the applicant could “seek alternative legal representation”.
As I understood it, the applicant’s argument was that even apart from the issue of the s.424A letter, the BMA request of 2 April 2014 was a request to adjourn the review, relying on the Tribunal’s general power to do so. Its failure to grant the adjournment in the circumstances was unreasonable. The applicant’s position now is that the Tribunal should have adjourned the making of its decision until the applicant secured new legal representation.
The Minister submitted that BMA’s request of 2 April 2014, contextually, can only be seen as a request for even further time to respond to the s.424A letter. That is, a request to provide a “late” response, in circumstances where the proscribed and extended time had elapsed.
It is important to note that BMA’s letter of 2 April 2014 makes no reference to, or mention of, the Tribunal’s invitation of 5 March 2014 or the subsequent communications set out above. It simply states that BMA were unable to continue to represent the applicant, the Department had advised that they would assist the applicant to obtain “new legal representation”, and asked for the adjournment to allow the applicant to “seek alternative legal representation”.
However, and further, in my view, while the actual terms of the BMA letter of 2 April 2014 are obviously important, they cannot be understood in isolation. The relevant factual context cannot be ignored.
The letter of 5 March 2014 was sent after the Tribunal had conducted a hearing with the applicant. The letter makes reference to conflicting evidence given by the applicant at various times after his arrival in Australia, during the processing of his protection visa application, and ultimately before the Tribunal. This included evidence given at the Tribunal hearing.
On the evidence before the Court, the matters raised in the letter of 5 March 2014 were the only outstanding matters in the review. As at 5 March 2014, but for that letter, there is nothing before the Court now to argue that the Tribunal was prevented from proceeding to a decision at that time.
In these circumstances, the request from BMA on 2 April 2014 can only, contextually and properly, be understood as a request for the applicant to seek (the matter of “obtain” is dealt with below) legal representation for the purpose of responding to the Tribunal’s letter.
This view is reinforced by the terms of the letter of 22 April 2014 from a solicitor with Fragomen who, in the letter, described herself as “new representation for the applicant” (CB 343). The letter begins with specific reference to the Tribunal’s letter of 5 March 2014. It ends with a statement directed to the opportunity to respond to the Tribunal’s invitation of 5 March 2014. Other than a reference to an Freedom of Information (“FOI”) application (in context to assist in the preparation for the response to the Tribunal’s letter), there is no other matter raised in that letter said to be outstanding in the applicant’s case, and in respect of which he needed legal representation (see further at ground three below).
The BMA letter, as it states, was a “request” for an adjournment so that the applicant could “seek” legal representation. I agree with the Minister that this can only be properly understood as a request for the applicant, with the assistance of the Department, to be given an opportunity to obtain alternate legal representation. The applicant’s submission now that the request was meant as a request for an adjournment until such representation was secured, on balance, does not flow from the language used (“able to seek”). In the circumstances, I agree with the Minister that the choice of words here by BMA was consistent with, and appropriate to, the situation that they could not know, as at 2 April 2014, how long such a process would take, nor whether the search would be successful.
The applicant also submitted that the use of the phrase “in the Applicant’s best interests” as it appears in the BMA letter of 2 April 2014, referred to the applicant’s mental illness and limited intellectual capacity. The submission was that this “reinforced” the view that BMA requested the adjournment so that the applicant could attempt to secure alternate representation.
In the absence of any reference in the BMA letter to the applicant’s claimed disability it may equally be said that this reference, in the circumstances, was directed to the point that it would be in the interests of any applicant to secure alternate representation given the nature of the matters raised by the Tribunal’s letter, which went to significant inconsistencies in the applicant’s evidence, claims and statements relating to his claimed fear of harm.
However, even on the applicant’s view now of what BMA meant (that it was in the applicant’s best interest to be represented given his difficulties) this, in my view, would still not serve to make what was actually said in the letter (as opposed to what the applicant now says it should have said) a request for an adjournment until representation was obtained.
It is of importance to note that the author of the BMA letter is described in the signature block of the letter as a “Solicitor & RMA” (in context, a registered migration agent). In my view, this lends weight to the Minister’s proposition that the letter should be taken to mean what it says, in these circumstances. This is not a letter from a lay person. The author, a Ms J Pangly, must be taken to have a certain level of skill in matters of this type (there is no evidence before the Court to the contrary).
On balance, I agree with the Minister that the plain words of the letter are that the request for the adjournment is for the purpose of the applicant seeking legal advice. That is, for an opportunity to do so. I agree with the Minister that Ms Pangly could not have known whether any representation would be obtained by the applicant, or even if it would ever be obtained. To give her request the meaning the applicant now contends for, would mean that Ms Pangly was seeking an indeterminate and open-ended period for the adjournment.
I take the view that as a lawyer and registered migration agent, Ms Pangly must be taken to have understood the context within which her request of 2 April 2014 was made. As set out above, the only “live” matter as at 2 April 2014, in the process of the review, was the content of the Tribunal’s letter of 5 March 2014, and the invitation to the applicant to comment on or respond to it.
If the letter is to be understood as one which resulted from the enlivening of the Tribunal’s obligation pursuant to s.424A of the Act, then as set out above, in the circumstances, this would involve the operation of s.424B(4) and s.424C(2) of the Act. Given the clear limitations imposed on the time available for the applicant to comment or respond, which Ms Pangly must be taken to have understood, the request in the BMA letter of 2 April 2014 is more properly understood as her seeking an indulgence from the Tribunal, given the “conflict of interest” situation, which apparently had only arisen or become known at that time. This also argues for a reading of the letter which is that the Tribunal provide an opportunity for the applicant, with the assistance of the Department, to seek alternate representation, rather than a request that the Tribunal adjourn indefinitely until representation was secured, with the possibility that it never be secured.
Before the Court, both parties focussed on the documents in evidence before the Court concerning the various exchanges between Mr Chiu of the Tribunal, Mr Kumar of the Department, the applicant in Villawood Immigration Detention Centre and Fragomen Lawyers, in the period immediately following 2 April 2014.
Dealing first with the two documents sent to the Tribunal on 7 April 2014 (the “Change of Contact Details” at CB 300 to CB 301, and the “Appointment of Authorised Recipient” form at CB 310 and CS-1 at page 97). It is to be remembered that these had been sent to the applicant by way of his then representative and “authorised recipient”, BMA, by the Tribunal on 3 April 2014, following receipt of the letter of 2 April 2014 from BMA. What appears at CB 300 to CB 301 and CB 310, are parts of the forms returned to the Tribunal, and apparently containing some information from the applicant.
The applicant’s argument before the Court was that on an objective view of these forms, and on what is written in them, the applicant did not understand the forms, or the nature of the responses to be given to those parts of the form to which some response is given. In part, this was linked to the applicant’s argument concerning his capacity and mental illness.
The applicant’s argument at this point was relevantly focused on the Tribunal’s finding ([5] at CB 318) that the applicant had “not appointed a new representative and the applicant has confirmed this in writing”. This was central to the applicant’s contention before the Court that the Tribunal’s refusal to adjourn the review could not be said to be have been explained by an intelligible justification.
The form at CB 300 to CB 301 contains the applicant’s name, date of birth, his “new residential address”, a mobile phone number and a “daytime phone” number, and a “client reference number”. The form is not signed. Those parts of the form dealing with “Representative contact details”, “Cancellation of authorised recipient” and “Cancellation of representative” are left blank.
The form at CB 310, dealing with the appointment of a representative and an authorised recipient, contains the applicant’s name, date of birth, and under the heading of “Complete details of your representative/authorised recipient” appears the applicant’s own name, postal address and mobile and facsimile numbers. The part of the form headed “My representative/authorised recipient” asks that such a representative be identified in terms of “migration agent”, “sponsor/nominator”, relative or “other”. The only response here is the applicant’s signature and the date of signing.
A number of factors are of note. First, these forms were sent to the applicant, properly at the time, via BMA on 3 April 2014. The letter to the applicant (CB 294) made clear that BMA had advised that they could not continue to represent the applicant.
The letter directed the applicant’s attention to the two enclosed forms in that context. That is, that if he wished to appoint another person as his “authorised recipient” he should complete the “Confirmation of Withdrawal of Authorised Recipient” (“the first form”). If he did not wish to appoint another, he should complete the “Change of Contact Details” form (“the second form”).
Second, on 7 April 2014 the Tribunal received the second form (CB 300 to CB 301), and part of the first form (CB 310).
Noting the context in which the forms were sent to the applicant, and given what items were addressed in the forms, and the applicant’s answers, I agree with the Minister that the applicant conveyed to the Tribunal that he was, from that time, self-represented, and without other representation. While it is the case that the applicant did not mark that part of the second form formally cancelling his representation, his answers to other parts of both forms can only be understood as saying that he had no representatives at that time, that he was in the situation of representing himself, and that “contact” from the Tribunal should be directed to him.
The Minister submitted that this should also be seen as a withdrawal of a nomination of BMA as the authorised recipient. The submission was that s.441G(3) of the Act permits an applicant to vary, or withdraw, notice of an authorised recipient, and that notice of this does not have to be in any particular form. That is, it could be express, implied, written or oral. In all, I agree with the Minister that what the applicant sought to convey as at 7 April 2014, when viewed objectively, was that he no longer had a representative/authorised recipient and that he would adopt those roles himself.
As also set out above, on 8 April 2014, Mr Chiu of the Tribunal and Mr Kumar of the Department had a conversation regarding the applicant’s completion of the forms. Mr Chiu recorded that he contacted Mr Kumar because the applicant had failed to “correctly complete” the forms (CB 304). Notwithstanding the reference to “forms”, Mr Chiu only sent the Change of Contact Details form to the applicant, through Mr Kumar, “to confirm” the applicant’s “cancellation of Representative/Authorised recipient”, or confirm whether he has appointed a new “Representative/Authorised recipient” (CB 305).
The applicant submitted that Mr Chiu’s reference to the applicant’s failure to “correctly” complete the form, supports the contention now that the applicant did not understand what he was doing.
I agree with the Minister that Mr Chiu’s subjective view of what the applicant was doing does not assist. Mr Chiu could not have known what the “correct” position was as this related to the applicant’s various relevant elections, as to any representative and authorised recipient. In context, and given the specific reference by Mr Chiu to the second page of the Change of Details Form, the reference to “failure to correctly complete the form” can be reasonably understood as an omission by the applicant of confirming what he had otherwise indicated by what he had put in the remainder of the forms.
Further, it is to be remembered that the applicant’s ground is an assertion of unreasonableness, and the relevant question in ground one is whether there was an intelligible justification for the Tribunal’s finding in relation to BMA’s request of 2 April 2014. That directs attention to the second half of [5] of the Tribunal’s decision record (at CB 318).
As stated above, what the applicant ultimately says is unreasonable in the Tribunal’s conduct of the review is that what appears at that part of the decision record is not such an “intelligible justification” for the Tribunal’s decision not to adjourn the review.
A further conversation between Mr Chiu and Mr Kumar occurred on 10 April 2014 (CB 306). The record of that conversation was contained in a case note (see [32] above).
This case note formed part of the material before the Tribunal in the conduct of the review. The note essentially says three things. One, Mr Kumar said on 10 April 2014, that on 11 April 2014 he would forward the applicant’s “completed form” withdrawing BMA as his representative/authorised recipient. Two, the applicant was not aware BMA had withdrawn. Three, the applicant had not appointed a new representative or authorised recipient.
On 14 April 2014, Mr Kumar sent the “Change of Details” form back to Mr Chiu (CB 307 and CB 309) (I note the form is signed on page 2 as at 9 April 2014, but sent to the Tribunal on 14 April 2014). There are two pages of relevance (page 1 is at CB 309, and page 2 is at CB 303). The only difference between this version of the second version of page 1 (CB 309) with what had been previously sent (CB 300), is that on the second occasion the applicant has ticked the item “there is no change to my contact details”. The second page (which was “blank” in relation to all items as at 7 April 2014, see CB 301) in the second version (CB 303) contains a tick as against each of the items “Cancellation of authorised recipient” and “Cancellation of representative”.
What the Tribunal relevantly had before it as at 14 April 2014, therefore, was that the applicant had withdrawn his authorisation that BMA act as his authorised recipient and representative, and had not nominated another person in those capacities.
There is evidence before the Court in CS-1 that there was activity in relation to obtaining alternative representation for the applicant. On 9 April 2014 a Mr D Smith from the Department sent a communication to Mr F Varess of Fragomen (CS-1 at page 102 to page 103 and see [28] above). Mr Varess responded on the same day (CS-1 at page 104 to page 105 and see [29] above). What was relevantly conveyed by Mr Smith was that the applicant had already attended a hearing before the Tribunal, that the “applicant was just waiting for further information and an outcome from” the Tribunal (CS-1 at page 105.1).
The reference to the applicant waiting on information is misleading. The Tribunal was waiting on a response from the applicant. However, what can be said as at 9 April 2014, is that Mr Varess was on notice that the “referral” to him was to be funded “as a partial review service”, the applicant had had a hearing before the Tribunal, and there was some matter relating to information outstanding, before the Tribunal was to proceed to an outcome.
On 11 April 2014, Ms Saunders of Fragomen sent correspondence to the applicant which included authority for them to act for him (CS-1 at page 108 to page 112). It appears these documents were returned to Fragomen on 15 April 2014 (see CS-1 at page 118, which shows the date of the facsimile transmission, and CS-1 at page 121, which shows the date of the applicant’s signature).
On 16 April 2014, Fragomen wrote to BMA asking that documents relevant to the applicant’s application for the visa, and application for review to the Tribunal, be provided to them (CS-1 at page 124). BMA responded on 17 April 2014 (CS-1 at page 126). Amongst the documents sent to Fragomen from BMA was the Tribunal’s letter of 5 March 2014, with the notation that this had “not yet been attended” to (see also CS-1 at page 129).
It is important to note that there is no evidence before the Court that any of this correspondence was before the Tribunal or that the Tribunal had any knowledge of it. Beyond being told that the Department would assist the applicant to seek new representation, it was not until 22 April 2014 that Fragomen communicated with the Tribunal (see CB 343 to CB 344 and ground three below).
The applicant has focused on the second part of the Tribunal’s decision at [5] (at CB 318) to argue that a request for an adjournment had been made on behalf of the applicant, in the BMA letter of 2 April 2014. Further, that at the second half of [5] (at CB 318), the Tribunal sought to address that request and in doing so did not provide an intelligible justification for refusing to adjourn the review.
Given the circumstances outlined above, and the relevant statutory context flowing from the characterisation of the Tribunal’s letter of 5 March 2014 as a s.424A letter, as the obligation under s.424A of the Act had been enlivened, I do not accept the applicant’s submissions now that what the Tribunal was doing at the second half of [5] was seeking to address an adjournment request.
It is trite to say that Tribunal decision records must be read fairly (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). This includes that they are to be read holistically and contextually.
In this light, it is to be emphasised that the Tribunal proceeded on the basis that its letter of 5 March 2014 was sent because s.424A of the Act was enlivened. The Tribunal’s reference in the first part of [5] (at CB 318) to the advice given to BMA on 25 March 2014, that a further extension of time could not be given “under the Act”, allows a clear inference to be drawn that the Tribunal was referring to, and understood, the relevant statutory consequences that arose given that the applicant had already exhausted the opportunity for a further extension of time (having already been granted an extension). This view is reinforced by what the Tribunal said at [37] (at CB 326).
What is set out at the second part of [5] (at CB 318), therefore, is not, in my view, an explanation of, or an expression of, a decision not to exercise a discretion to adjourn the review. Given the findings set out above in this judgment as to the circumstances surrounding the various requests for more time, what is set out at [5] of the Tribunal’s decision record (and in light of [37]), can be seen, and reasonably understood, as a finding that the applicant had not responded to the s.424A letter, and that, after the extension granted up to 26 March 2014, it was statutorily not possible to grant the applicant any further extension for the purpose of responding to the s.424A letter. Noting again that, as set out above, as at that time this was the only outstanding matter in the conduct of the review. I agree with the Minister that what is set out at the second half of [5] (at CB 318) are merely statements of fact to explain what had occurred in that part of the conduct of the review.
This gives rise to the question as to whether it was open to the Tribunal to proceed to a decision in the review on 22 April 2014, including whether by doing so the applicant was denied procedural fairness. This latter is also a complaint raised by ground one albeit focused on 2, rather than 22, April 2014 (see further below at [147]).
In this context it is important to note that the Tribunal ultimately proceeded to a decision in circumstances where it had not (because it could not), agreed formally to the request for an extension of time beyond 26 March 2014. Nonetheless it delayed making its decision for another twenty days after the receipt of the request.
While a number of relevant elements may be inferred as to the Tribunal’s proceeding to a decision on 22 April 2014, there is no express explanation given by the Tribunal in its statement of reasons. I should note that that in itself does not reveal jurisdictional error, but leads to a consideration of whether the decision to proceed falls “within a range of possible, acceptable, outcomes which are defensible in respect of the facts and law” (Li at [105], see also Singh at [44]).
In this light, what the Full Court said in Singh is of direct relevance to the disposition of the question of whether the Tribunal acted unreasonably (at [42]):
“It would be wrong to see Li as creating some kind of factual checklist to be followed and applied in determining whether there has been a legally unreasonable exercise of a discretionary power. Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence. Ultimately, however, the outcome will depend on the application of the principles which emerge from Li, and the earlier authorities discussed in it, rather than on mere factual similarities or differences.”
There are, as the Minister submitted, a range of possible reasons that may be drawn from the evidence as to why the Tribunal proceeded as, and when, it did to a decision.
It is to be remembered, as the Tribunal plainly understood, that the only outstanding matter, as at 2 April 2014, was the applicant’s response to the s.424A letter, and whether any response would be made. As stated above, while the statutory time for such a response passed after 26 March 2014, the Tribunal held off making its decision until, in the first instance, 2 April 2014, and then subsequently 22 April 2014.
In that context, and on the evidence of what was before the Tribunal, and known to it, the Tribunal could not have known whether the applicant intended to respond to the s.424A letter, noting, on what has been found above, that as at 9 April 2014 he had formally withdrawn his authority to BMA to act for him.
While, on the evidence now before the Court, the Department was taking action to assist the applicant in seeking alternate representation, and Fragomen had been approached, none of this was conveyed to the Tribunal or otherwise known to the Tribunal. It was open to the Tribunal to infer that the Department had been unsuccessful in this regard.
Nor could the Tribunal have assumed that the applicant intended or could, respond to the s.424A letter from the known conduct of BMA up until 2 April 2014. At best, the only matter of relevance conveyed by BMA was on 11 March 2014 (CB 290), when it advised the Tribunal that they had difficulty in obtaining instructions because of the applicant’s “mental health problems”, and they were in the “process of obtaining further health documents” for the applicant.
One inference that may be drawn from this is that they were seeking this material to explain the difficulty in “contacting” the applicant, in which case, a further inference is available that there would likely be no response to the s.424A letter.
Alternatively, another available inference is that the “further health documents” may have been relevant to the question of the applicant’s capacity to effectively participate in the hearing. The BMA advice of 11 March 2014, that they were in the process of obtaining “further” health documents, must be seen in light of the fact that the representatives had already provided a report dated 4 February 2013 concerning the applicant’s “post-traumatic stress disorder with severe anxiety” (see [3] at CB 317).
It was not clear whether this “further” material was intended to be responsive to the matters raised by the Tribunal in its s.424A letter. Those matters related to inconsistent evidence given, and statements made, by the applicant at an interview on arrival, and subsequently at various times during the processing of his visa application and the review of the delegate’s decision by the Tribunal. These various statements and evidence were identified by the Tribunal, in its letter, as being about what had happened to the applicant at the airport in Sri Lanka on his return from the UK in 2010, and an incident that he claimed had occurred to him concerning an attack while transporting passengers in his rickshaw in Sri Lanka.
It may be that this “further” medical evidence may have been intended to go to the question of the applicant’s memory, which in turn may have been used to explain the inconsistencies in his evidence. However, this was by no means clear in the short advice provided by BMA to the Tribunal on 11 March 2014. Noting also that beyond a general description there was no indication of what the health documents may have been, or if they would ultimately be made available to the Tribunal.
In any event, the Tribunal was already on notice of the applicant’s claimed mental health issues, and as set out above, already had evidence of this before it. Nor can the Tribunal proceeding to a decision be seen as unreasonable in circumstances where it directly addressed the issue of the applicant’s mental health, accepted the opinion provided by the social worker, and proceeded to consider the applicant’s capacity in that light (see [3] – [6] at CB 318).
I note that [5] (at CB 318), on which the applicant now relies, was a part of the Tribunal’s consideration of the issue of the applicant’s capacity to “participate effectively in the hearing before the Tribunal” (see CB 317.7). The inference available to be drawn, reinforcing the view I have taken above, is that the Tribunal understood it had no capacity, under the statute, as at 2 April 2014, to extend time for the applicant to respond to the s.424A letter. What the Tribunal, therefore, drew from BMA’s letter of 2 April 2014 was focussed on the matter of the applicant’s mental health.
The further inferences that can be drawn, either way, are that the Tribunal sought to give the applicant further time as at 2 April 2014 to respond to the letter, notwithstanding that no extension could be granted, or was seeking to await further documentation about the applicant’s mental health, or as a third possibility, both. In all, therefore, I find that the Tribunal proceeding to make its decision on 22 April 2014 was not legally unreasonable as that concept is explained in relevant authorities.
Ground one also asserts that the Tribunal’s refusal to adjourn the review, as at 2 April 2014, was, in the circumstances, also a denial of procedural fairness. The applicant relied on the same factual matrix as set out above.
This assertion is also not made out. As stated above, the Tribunal had no discretion as at 2 April 2014 to grant any further extension of time to allow further time for a response to the s.424A letter. Even if the BMA letter of 2 April 2014 were to be read as a request for an adjournment to allow the applicant time to seek alternate representation, the Tribunal’s conduct did not amount to a denial of procedural fairness. Although it understood it could not grant any extension to allow the response to the letter, in the context of which BMA’s request was couched, the Tribunal plainly did not proceed to make its decision immediately.
The applicant also relied on the proposition that the Tribunal can also fall into jurisdictional error where steps taken by the Tribunal are procedurally unfair, and that this applies even when the Tribunal was “ignorant” of the relevant facts. He gave as an example to support this proposition Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 (“SCAR”) and see also Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 497.
In SCAR, the Tribunal proceeded to a hearing pursuant to s.425 of the Act in circumstances, where, albeit unknown to it, the applicant in that case, as had been found by the Court at first instance, was not fit to represent himself before the Tribunal due to having received news of his father’s death. The Court found that the Tribunal’s lack of knowledge of this did not determine the question as to whether there had been a breach of s.425 of the Act. That breach arose from a failure in the circumstances of a real and meaningful invitation to the Tribunal hearing.
The applicant has not satisfactorily explained how this applies to the current circumstances. As set out above, what was conveyed to the Tribunal by the Departmental officer and the applicant himself was factually accurate and represented the relevant state of affairs at that time.
The applicant also relied on R v Criminal Injuries Compensation Board; Ex parte A [1999] UKHL 21; [1999] 2 AC 330. It is not necessary to set out what occurred in that case. I agree with the Minister that the applicant’s reliance on this case must be seen in light of what the Full Federal Court said in SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123 (“SZOIN”). The Court held that in relation to the question as to when the Tribunal will fall into jurisdictional error in circumstances where it makes a decision is to be found “…in the absence of centrally relevant information that should have been presented to it” (at [71]). Noting that in that case the “third party” was the Secretary of the Department (see SZOIN at [67] - see also Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [33] – [43]) (see further below).
I should also note that the applicant made reference to the observation of Gleeson CJ in Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [22] that “[p]rocedural unfairness can occur without any personal fault on the part of the decision-maker”.
There are a number of authorities that reflect that observation. For example in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 the Tribunal decision was found to have fallen into jurisdictional error because the Tribunal’s invitation to a hearing pursuant to s.425 of the Act was “stultified” by the fraud of a third party, a person who purported to represent the applicants as a solicitor and migration agent, even in circumstances where the Tribunal had no knowledge of that conduct, or the fraud.
In that case, before the Full Federal Court Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 at [10], French J (as his Honour then was) said:
“Professor Hanbury described the common law and equity as having ‘quarrelled over the possession of the word ‘fraud’ like two dogs over a bone, off which neither side was sufficiently strong to tear all the meat’, and said that the word fraud applied ‘indifferently to all failures in relations wherein equity set a certain standard of conduct’. Hence the attachment of the term ‘fraud’ to the exercise of powers of appointment, and of other powers, such as those of company directors, in a fashion of which equity disapproved.”
I agree with the Minister that in the current case that legal framework is inclusive of Part 7 of the Act, and in particular Div. 4 of the Act, which included s.424A and s.427 of the Act on which the applicant relies as set out, variously, above. That Division is the exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252).
In context of the references to s.418(3) of the Act above and the obligation of the Secretary of the Department, I note that the communications between the Department and Fragomen were not communication leading to, or relevant to, the delegate’s decision. It plainly post-dated that decision. Nor was the communication between the Department and Fragomen (noting that the applicant had not appointed Fragomen to represent him until 15 April 2014 and notified the Tribunal on 22 April 2014) a matter, that went to the applicant’s claims to protection before the Tribunal.
Nonetheless s.418(3) of the Act required the Secretary of the Minister’s Department to consider whether to give to the Tribunal documents in the Secretary’s control or possession relevant to the review of the delegate’s decision. In SZOIN, the majority of the Full Federal Court (per Bennett and McKerracher JJ) held that there was an ongoing obligation on the Secretary to give to the Tribunal such documents he “considers to be relevant to the review and [the obligation] continues until the review is completed” (SZOIN at [57]).
The difficulty for the applicant, in the current case, is that he did not satisfactorily explain to the Court the relevance of the correspondence with the Minister’s Department to the applicant’s claims before the Tribunal. In any event, even if in the current case, as in SZOIN, the Secretary did not consider whether the documents were part of his ongoing obligation to give the documents to the Tribunal (see SZOIN at [55] – [56]), then, in the circumstances presented, and having regard to what was said in SZOIN, this would not necessarily give rise to jurisdictional error on the part of the Tribunal. There was no assertion in the current case that fraud was involved (SZOIN at [65] – [66], [91] and [93] – [94]).
In all, I do not accept that the Tribunal failed to take into account relevant considerations as the applicant contends, or denied the applicant procedural fairness. I do not accept that the Tribunal constructively failed to exercise its jurisdiction. In all, ground two is not made out.
Ground Three
Ground three asserts jurisdictional error in the Tribunal’s decision, said to arise when the Tribunal decided not to postpone making its decision after receiving a request from Fragomen on 22 April 2014 to do so, because it found it was “functus officio” at that time, and had no power to take any further action on the review.
There was no substantial dispute between the parties as to the following events on 22 and 23 April 2014:
1)The Tribunal member “signed” the reasons for decision on 22 April 2014 (CB 316).
2)At 11.43am Mr Chiu (the Tribunal officer) sent a facsimile transmission addressed to the “Business Manager” at “Villawood IDC Gatehouse”, and asked that the “attached decision” be immediately given to the applicant by “hand delivery” (CB 311 to CB 312 and CB 327).
3)The applicant says that, at this time, the Registrar of the Tribunal had not provided written authorisation to any person to hand documents to the applicant pursuant s.441A(2) of the Act. The Minister admitted that there is no such document in the Tribunal’s records.
4)At 11.52am, 22 April 2014, Mr Chiu sent an email addressed to the “DIAC CASE MANAGER” to the address “[email protected]” stating that a decision had been made in the applicant’s case. This was copied to Mr Kumar of the Department (CB 338). The applicant submitted that a copy of the Tribunal’s decision was apparently attached to the email.
5)At 12.06pm on 22 April 2014 an email was sent from “Microsoft Exchange” to [email protected] with the following (CB 339):
“Subject: Relayed: Attention – Detention Notification – [the applicant]…[SEC=UNCLASSIFIED]
Delivery to these recipients or distribution lists is complete, but delivery notification was not sent by the destination:
6)On 22 April 2014, the Tribunal (through another Tribunal officer) sent a letter to the Secretary of the Department (CB 340 – 341). The letter was sent pursuant to s.430A of the Act, and enclosed the Tribunal’s written statement of decision made pursuant to s.430 of the Act.
7)On 22 April 2014 at 3.07pm, Fragomen sent a letter by email to (CB 342 – 347) an address: “IMA correspondence”.
8)It is not entirely clear on the evidence if this email address was the email address of the Tribunal. The Tribunal advised the applicant, in a letter sent to his former authorised recipient, that the email correspondence to the Tribunal could be provided to “[email protected]” (see CB 219).
9)The letter was also forwarded by email to Mr Chiu, the Tribunal officer, at 3.39pm (CB 342) from “IMA Correspondence” (CB 342.2).
10)The letter made reference to:
i)The Tribunal’s letter of 5 March 2014 (CB 343.5).
ii)Noted that Fragomen had been “requested” to represent the applicant on 9 April 2014 (CB 343.6).
iii)As the “new representative”, Fragomen had made a “request” to the Department for relevant files pursuant to the FOI Act on that day. Further, that they were advised that the Department would “likely” provide those documents in 30 days time. Fragomen asked that the Tribunal not proceed to determine the matter until 7 Days after the “FOI documentation [was] received” (CB 343.8).
11)The Minister admitted that the applicant was handed a copy of the Tribunal’s decision “around 3.30pm on 22 April 2014” (see footnote 53 to [68] of the applicant’s written submissions).
12)On 23 April 2014, the Tribunal sent a letter by facsimile to Fragomen (CB 348) and was received by Fragomen on 4.39pm (see CS-1, page 176). The letter is in the following terms (CB 348):
“MATERIAL RECEIVED AFTER CASE FINALISATION -APPLICATION FOR REVIEW – [THE APPLICANT]
The Tribunal received a submission from your newly appointed representative Ms Charlotte Saunders from Fragomen by email dated 22 April 2014 on 22 April 2014 at 3:39pm.
The submission was forwarded to the Presiding Member and the request was carefully considered. However, the Presiding Member has decided not to reopen this case.
The Tribunal made its decision in this case on 22 April 2014 and a notification of decision was sent to you via fax to the Villawood Immigration Detention Centre at 11:43am. Also, the Department was notified of the decision on 22 April 2014 at 11.52am. Once the Tribunal has made a decision under the Migration Act 1958, it becomes functus officio and has no power to take any further action on the review.
The Tribunal is not in a position to assist you any further on this issue.
Please note that a courtesy copy of this letter was provided to your newly appointed representative Ms Charlotte Saunders from Fragomen.”
In essence, the Tribunal’s reasons as to why it said it was “functus officio” were that it had made its decision on 22 April 2014, notification of that decision was sent by facsimile to the applicant at 11.43am, and to the Department at 11.52am. The Tribunal, therefore, had “no power” to take any further action in line with Fragomen’s request received by email at 3.39pm on that day.
Before the Court the applicant identified the relevant issue as being whether the Tribunal’s decision was “beyond recall” by 3.07pm on 22 April 2014, which he says was the time Fragomen requested the Tribunal not to proceed to a decision.
The applicant relies on the Full Court judgment in Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131; (2012) 206 FCR 25 (“SZQOY”) per Buchanan, Logan and Barker JJ to argue that simply because the Tribunal may have completed its “intellectual process” in relation to the review, and even in circumstances where it had requested the Tribunal’s registry to take steps to send the decision to the applicant, and the Secretary, does not render the decision “beyond recall”.
In SZQOY, the relevant facts were that the Tribunal’s internal case management system recorded a “decision” “made” at 2.34pm on 27 July 2011. However, administrative steps within that system described as “case Finalisation” and “Decision Finalisation of Review” were recorded at 6.39pm and 6.42pm respectively. In that case, the applicant’s representative had sent the Tribunal two documents for its consideration at 4.57 pm.
The Full Court found that as at 4.57pm, the Tribunal’s decision was not “beyond recall” and identified the point at which it would be so. The Full Court relied on an earlier Full Court decision in Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240 (“Semunigus”). Of relevance (Semunigus at [12] per Spender J and [103] per Madgwick J):
“[12] There is little evidence touching the question whether the decision by the Member of the RRT, in this particular case, was ‘beyond recall’ I think it likely that, had the Member wanted to recall his signed decision, because, for example, he had changed his mind or had realised that he had made a mistake, he would have been able to retrieve the decision at any time prior to a copy of it having been sent to either the Minister or the applicant as then required by s 430(2) of the Migration Act 1958 (Cth) (‘the Act’)."
…
[103] In a case of the kinds dealt with by the RRT, a decision is no decision, in my opinion, until either it has been communicated to the applicant or irrevocable steps have been taken to have that done. I speak of communication to the applicant because, before the RRT, the applicant is the only party. There is no need to regard a decision as irrevocable before it must be considered to have passed into the public domain.”
In SZQOY Buchanan J said at [29] (see applicant’s submissions at [10]):
“In my view, the observations of Higgins J have no application to the facts of the present case and, with respect, I am unable to agree with them as a matter of principle. In my respectful opinion the principles stated by Madgwick J and echoed by Spender J are a correct statement of the legal position. All three judges endorsed the statement of principle made by Finn J. That statement of principle incorporates a critical consideration. A decision maker must be precluded from revisiting the decision at his or her option before it is to be regarded as final in the relevant sense. In the present case there was, in my view, no support in the evidence or in any of the statutory provisions relied upon by the appellant to suggest that it was beyond the power of the member of the RRT to recall the decision which had been sent to the Registry through the RRT’s electronic case management system. In so far as the member of the RRT concluded that it was beyond his power to do so he made a jurisdictional error.”
In the same case Logan J said at [34] and, further, at [40] – [41]:
“[34] Like Buchanan J, I consider that the RRT’s decision was not beyond recall by the member constituting the RRT for the purposes of the review until it was manifested to the applicant for review (the first respondent) and to the Secretary to the appellant Minister’s department by some overt act. That was the view expressed in Semunigus by Finn J at first instance (at [19]) and, on appeal, certainly by Madgwick J (at [102] - [103]) and also, I consider, by Spender J (at [12]), in contrast to that of Higgins J (at [78]) who considered that communication of the member’s decision on the review to the registry put it beyond that member’s recall. Because we are differing from Higgins J on a point not just of considerable practical importance in relation to the administration of the RRT but also one of principle, which may be of more general relevance to administrative decision making, I wish to amplify why I am in general agreement with Buchanan J.”
…
[40] The intellectual process in undertaking the core function of review is not an end in itself. The decision and reasons which are the result of that intellectual process must be made known to the persons interested. Those persons are the applicant for the review and the Secretary. It is only when the decision of the RRT as constituted by the particular member has either been pronounced orally or, if given in writing, sent to the applicant and to the Secretary in accordance with the notification obligation that the core function of review is complete. Before then, the member is entitled to have second (or more) thoughts perhaps on the basis of further reflection on all of the material hitherto to hand, perhaps stimulated by further material. At that stage, the matter is entirely intramural. Depending on the nature and source of that further material there may be procedural fairness obligations which fall upon the member before a final decision is made. That member is entitled to entrust to a registry officer the tasks of recording the decision and of notifying the applicant and the Secretary of that decision but the responsibility for so doing remains that of the member who has conducted the review. Until the decision has been sent out, that member is also entitled to countermand a direction to the registry to record and send out what has proved, upon the member’s reflection, to be an earlier version of that member’s decision.
[41] A distinction between the intellectual process of administrative decision-making and its culmination by manifestation to the interested party is also evident in the analysis made by Kitto J (Menzies J agreeing) in Batagol v Federal Commissioner of Taxation [1963] HCA 51; (1963) 109 CLR 243 (Batagol) of the process of assessment laid down in the Income Tax Assessment Act 1936 (Cth). His Honour’s conclusion was that assessment in the sense of a mere calculation produced no legal effect, the process of assessment not being complete until notice of the assessment had been given to the taxpayer, ‘[N]othing done in the Commissioner's office can amount to more than steps which will form part of an assessment if, but only if, they lead to and are followed by the service of a notice of assessment’. In this case, an analysis of the provisions of the Act relating to the RRT’s core function of review yields a similar type of conclusion. Nothing done within the RRT’s office can amount to more than steps which will form part of the review of the decision if, but only if, they lead to and are followed by the oral pronouncing or other notification of the decision of the particular member constituting the RRT for the purpose of that review.”
In SZQOY per Barker J at [57]:
“The Act, as Logan J, with respect, demonstrates in some detail, indicates communication to a party – and probably to the Secretary too – as a critical point in the process by which the decision arising from the review process is ‘beyond recall’. I would also emphasise, however, that it is only following receipt of the reasons given for a decision that parties such as an appellant and the Minister or where appropriate the Secretary will be in a practical position to take advantage of their rights to make an application in respect of the decision as provided for by s 478 of the Act.”
The applicant argued that even where steps are taken to send the Tribunal’s decision to the applicant, or Secretary, that does not mark the point where the Tribunal decision becomes “beyond recall” (see, in particular, SZQOY per Logan J). I respectfully understood Logan J’s reasoning to be that a Tribunal decision is not “beyond recall” until it is “manifested” to the applicant, and the Secretary. That, in my respectful view, is the critical point.
The applicant also argued that even if it could be said that a Tribunal decision becomes “beyond recall” when steps are taken to notify the applicant or Secretary, those steps in effecting such notification would have to be taken in accordance with the Act.
The applicant relied on SZRNY for that latter proposition. The relevant factual scenario in that case was that the Tribunal prepared a written statement of its decision, pursuant to s.430 of the Act on 12 March 2012. By letter dated, 12 March 2012, the Tribunal gave the Secretary a copy of the decision (s.430A(2) of the Act). On the same day, it sent a letter to the applicant, but it was sent to the “wrong address”. A letter sent to the “correct address” was sent on 28 May 2012 in accordance with s.441A(2) of the Act.
On 24 March 2012, the complementary protection provisions of the Act commenced. The relevant transitional provisions provided that complementary protection amendments in the Act applied to applications that had not been “finally determined” as at that date (see s.5 and s.5(9)(a) of the Act for the definition of “finally determined”). That is, a decision is “finally determined” when it is not, or is no longer, subject to any form of review by the Tribunal.
In SZRNY, the question for the Full Court was whether the decision was “finally determined” as at 24 March 2012. At that date, the Tribunal had notified the Secretary, in accordance with the Act, but had not notified the applicant in accordance with the Act.
The majority in SZRNY (per Griffiths and Mortimer JJ) held that the application for review was not “finally determined” until both the applicant and the Secretary had been notified, as required by s.430A of the Act (see at [84]). Such notification had to be by one of the methods in s.441A of the Act (for the applicant) and s.441B of the Act (for the Secretary). In SZRNY, the majority relied on the observations of Barker J and Logan J in SZQOY.
I note in SZRNY, Buchanan J, who was a part of the Court in SZQOY, was in dissent, and stated at [20] – [21]:
“[20] The Principal Member is the executive officer of the RRT and is responsible for the overall operation and administration of the RRT (s 460). The Principal Member may give directions as to the operations of the RRT, including directions about the application of efficient processing practices (s 420A). Under s 472 a Registrar of the RRT is to be appointed, together with ‘such other officers’ as are required. Officers of the RRT have such duties, powers and functions as are conferred by the Act and the regulations thereunder, and also ‘such other duties and functions as the Principal Member directs’. There is no reason to suppose, in the present case, that the administrative arrangements to which Ms Osmo deposed before the FMCA, were not administrative arrangements properly authorised by the Principal Member, to which officers of the RRT gave effect.
[21] So far as is relevant to the present case, when the RRT makes its decision on a review it must prepare a written statement which sets out the decision, the reasons for the decision, its findings on any material questions of fact, and references to the evidence or other material on which the findings of fact were based (s 430). The RRT must notify the applicant for review of its decision by giving the applicant a copy of the written statement (s 430A). That may be done in various ways within 14 days of the date that the written statement setting out the decision bears. A copy of the written statement must also be given to the Secretary of the Department of Immigration and Citizenship. If an oral decision is given, the RRT must give the applicant and the Secretary a copy of the statement prepared under s 430 also within 14 days.”
In light of what the majority said in SZRNY, the applicant submitted that the Tribunal erred in considering that it was “functus officio” because, with reference to relevant procedures in the Act dealing with notification of the Tribunal decision to both the applicant and the Secretary of the Department, the Tribunal did not comply with those procedures, and until it did, it was not “functus officio”.
Given the applicant’s, and Tribunal’s focus, on the concept of “functus officio”, it is of value to note that, in the context of an administrative tribunal, the term can be used to describe the reaching of a state in the consideration of a particular matter when the Tribunal has discharged its duty. That is, when it performed its function such that nothing further remains to be done. Given the relevant authorities that include the sending of the decision out of the Tribunal’s area of control such that it becomes “beyond recall”, in the current context, once the Tribunal achieved that state it was unable to consider the matter even in circumstances where new submissions, arguments or documents are proffered.
Of the two cases essentially relied on the by the applicant now for this ground, SZQOY had, as the central issue before the Court, the question of when the Tribunal in that case became “functus officio” (see at [1] per Buchanan J). That question, in the circumstances presented, arose in the context of whether the Tribunal “was precluded as matter of law from deciding to consider the materials lodged late by the representative of the appellant…” (at [50] per Barker J).
In contrast to this, SZRNY was concerned with what I respectfully understood to be a different question. That is, the issue was “when the first respondent’s application for a protection visa” was “finally determined” within the meaning on s.5(9)(a) of the Act (at [43] per Griffiths and Mortimer JJ, and see at [3] per Buchanan J).
Further, in SZQOY, as in the current case, the issue arose in circumstances where “further” or “new” documents were submitted by the applicant. In SZRNY the issue as to whether the application for a protection visa was “finally determined” arose in circumstances where that question became relevant because amendments to the Act created an additional criterion for the protection visa which had not been considered by the Tribunal in that case.
In this light, it is appropriate to consider the current circumstances in light of what was said in SZQOY as the circumstances are more analogous to the current situation. In part, the Minister’s submissions were directed to arguments that even the Minister otherwise conceded were not supported by SZQOY. Those arguments are contained in written submissions at [98] – [100], with the “concession” as to SZQOY at [107]. These submissions cannot assist the Minister for current purposes. It is trite to say that this Court is bound by SZQOY. Any argument therefore “not supported” by SZQOY, and which I understood to be contrary to what was said in SZQOY, cannot lead to the disposition of the current dispute between the parties as it arises from ground three.
In any event, in my respectful view, it is important to note that in SZQOY the factual context from which the issue for the Full Federal Court arose, was that the Tribunal member, in that case, had, to respectfully apply the words of Finn J in Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422 at [19] (Semunigus at first instance) reached “a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision”.
However, that “decision” in SZQOY (and for that matter similarly in Semunigus) was then sent to the Tribunal Registry for the purpose of despatch to the applicant in that case, and the Secretary of the Minister’s Department. Before any such despatch, occurred, that is while the copies of the “decision” were still in the Tribunal’s Registry, and had not been sent outside, the applicant’s representative made a further written submission. The Tribunal, in that case, took the view that it had no power to consider that submission because once the decision had been “signed” by the Tribunal member and sent to the Registry, the Tribunal became “functus officio”.
As set out above, the Full Court in SZQOY found that the Tribunal was in error in reaching this conclusion. The Court reasoned that the Tribunal member had the power to “recall” its decision from the Tribunal Registry while the decision copies remained in the Registry. The three judges of the Full Court were in “general agreement” as to the reasoning leading to the conclusion in that case that the Tribunal fell into jurisdictional error in concluding otherwise (SZQOY at
[17] – [18] and [24] per Buchanan J).
That is, the Tribunal’s authority to recall, revise, amend and even reverse its decision “did not end upon the occasion, or at the time, of an internal communication to its own registry” (SZQOY at [23] – [24] per Buchanan J).
I agree with the Minister, that, with respect, the “common thread” to each of the judgments in SZQOY, is that a Tribunal decision will not be subject to alteration when the decision is beyond recall or incapable of revision. That is the point when the Tribunal will be “functus officio” in respect of its decision making power (see Telstra Corporation Ltd v Kotevski [2013] FCA 27; (2013) 209 FCR 558 at 568-569 at [37] per Rares J). The Full Court found in SZQOY that that point was not reached while the decision remained in the Tribunal Registry.
It is important to note that all three judges in SZQOY expressed agreement, on a similar issue, with Spender J and Madgwick J in Semunigus (on appeal) and Finn J at first instance, (see at [25] – [29] per Buchanan J, [33] – [34] per Logan J and [55] per Barker J).
While, as referred to above, SZRNY was concerned with the question of “finally determined” rather than “functus officio”, what Buchanan J said in SZRNY (in dissent) is illuminating as to what he relevantly meant in SZQOY (see at [19] – [33]).
In the current case, the applicant relied on various parts of the three judgments in SZQOY, and Madgwick J and Spender J in Semunigus to base the argument that the Tribunal in the current case fell into jurisdictional error.
There was no dispute between the parties that SZQOY stands for the proposition that a decision, at least, is able to be recalled by the Tribunal while it “remains in the Tribunal registry”. That is, no steps have been taken to externally communicate the decision.
In the current case, such steps did take place prior to the receipt by the Tribunal of the email from Fragomen at 3.07pm on 22 April 2014 (taking the earlier of the two times referred to in [206] (7) – (9) above). The applicant’s argument, however, was that these steps must be of a particular character. In essence, the argument was that those steps were not in accordance with procedures set out in the Act (in notifying the applicant and the Secretary). Until those procedures were followed and complied with, the applicant argued, the Tribunal could not be said to be functus officio.
The applicant submitted that both Semunigus (per Spender J and Madgwick J) and SZQOY supported this argument. The applicant referred to Semunigus at [12] per Spender J and [103] per Madgwick J (see above at [211]). The applicant submitted that in SZQOY, Buchanan J expressed the view that the statements of Spender J and Magdwick J were a “correct statement of the legal position” (at [29]).
It is again important to be reminded of the context in which these statement were made. That is, in the consideration of “functus officio” and the capacity by the Tribunal to recall the decision, and the “line” between the decision being merely sent to, and continuing to reside in, the Tribunal Registry, and the despatch by the Registry of a copy, or copies, of the decision outside the Tribunal Registry.
In that light, I respectfully understand what Spender J to have said at [12] of Semunigus to be that the Tribunal decision was not “beyond recall” while the Tribunal member could have retrieved it. Such capacity existed until the decision had been despatched. In my respectful view, and in the light of the relevant context, the reference to sending a copy of the decision pursuant to s.430A of the Act was a reference to how, and why, it would be expected that such copies would be despatched by the Tribunal Registry.
In my respectful view, the “line” between retention inside the Tribunal Registry, and despatch, in the consideration of the question as to whether the Tribunal decision was irretrievable, was emphasised with the reference by Madgwick J (at [103] of Seminigus) to “the public domain”. I do not respectfully understand the focus there to be, as the applicant submitted, that the passing into the public domain is qualified by this act being done in a particular way.
I respectfully understand Buchanan J (at [12] of SZQOY and as also explained at [21] – [24]) to say that the matter of how the decision is communicated, and to whom, did not arise for consideration in either Semunigus or SZQOY. This, in my respectful view, emphasises the matter of concern in both those cases as being whether the decision had “left” the Tribunal Registry and was not subject to recall. That is, it had passed into the “public domain”.
The applicant also referred to SZQOY at [34] and [40] – [41] per Logan J and Barker J at [57] (see at [213] above). The applicant argued that such references as “manifested to the applicant” or “when the decision…sent to the applicant and the Secretary in accordance with the notification obligation” as referred to at [34] and [40] – [41] of SZQOY supports the applicant’s argument that the Tribunal is not functus officio until the Tribunal’s decision not only leaves the Tribunal Registry, but is received by the applicant and, possibly, also the Secretary.
Again, in my respectful view, those parts of the judgment emphasised by the applicant need to be read in light of the question the Court was addressing and, importantly, in light of the entire paragraph in which they appear.
For example in SZQOY at [40] Logan J ends the paragraph with:
“…[u]ntil the decision has been sent out, that member is also entitled to countermand a direction to the registry to record and send out what has proved, upon the member’s reflection, to be an earlier version of that member’s decision.”.
[Emphasis added.]
In my respectful view that emphasises that the focus of the Court was on whether the decision was still in the Tribunal Registry at the time when a “new” submission or document is received, and whether the decision was in the “public domain” and, therefore, beyond recall.
Further, I respectfully understood what was said in SZQOY at [57] per Barker J as being, in context, that a communication to the applicant or the Secretary, would be sufficient for it to be “beyond recall”. I do not respectfully understand that part of the reasoning to require the communication of the decision be effected in a particular way.
It is the case that a copy of the decision was sent by facsimile to the applicant at 11.43am on 22 April 2014 to the Villawood Immigration Detention Centre. There is no evidence that the applicant had provided this facsimile number for the purpose of receiving communications from the Tribunal, even though he was detained at the Villawood Immigration Detention Centre. Nor had the Tribunal authorised any person to deliver the “decision” by hand.
Further, the Tribunal also sent a copy of the decision at 11.52am on 22 April 2014 by email to a Departmental email address, but not one notified to the Tribunal by the Secretary for the purpose of s.441B(4) of the Act.
In short, the Tribunal, on the evidence, and as at 11.52am, had not complied with s.430A(1)(b) and (2)(b) of the Act when it despatched copies of its decision to the applicant and the Secretary. In this regard, I note that the absence of compliance with s.430A of the Act, and in the manner set out there, does not affect the validity of the decision (s.430A(3) of the Act).
However, for the current purposes, the Tribunal’s view was that it was “functus officio” at the time of the receipt of the communication from Fragomen at 3.39pm on 22 April 2012, because it had sent notification of the decision by facsimile to the applicant at 11.43am on that day and to the Secretary at 11.52 am. I agree with the Minister that on the basis of the authorities of SZQOY and Semunigus (as set out above), the Tribunal was “functus officio” as at 11.43 am, and certainly, by 11.52am on 22 April 2012.
By that time the decision had been “sent out” by the Tribunal’s Registry and was essentially in the “public domain”, as referred to in Seminugus. The matter of the review of the delegate’s decision was no longer “entirely intramural”, and by 11.43am, had been despatched to the applicant. Ultimately, and with further reference to what is set out above, the Tribunal had reached “…a conclusion on a matter as a result of a mental process having been engaged in” and by communicating that decision outside of the Tribunal Registry, by an “overt act”, that conclusion was translated into a decision. The Tribunal was therefore not in error. In all, ground three is not made out.
Ground Four
Ground four asserts jurisdictional error because the Tribunal is said to have misapplied s.91R(2) of the Act. The applicant relied on WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 per North J to argue that the Tribunal erred by finding that the applicant would not face persecution on return to Sri Lanka by making a qualitative assessment of the nature and severity of detention the applicant would face on return to Sri Lanka.
Before the Court, the Minister argued that in three other matters involving this point three Full Federal Court authorities found North J was in error. The applicant sought to distinguish these cases.
In any event, the matter is now beyond doubt given the High Court’s judgment in Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22; (2015) 320 ALR 467 handed down after the hearing of this matter. Ground four is not made out.
Conclusion
In all, the grounds of the application do not reveal jurisdictional error in the Tribunal’s decision. The application should be dismissed. I will make an order accordingly.
I certify that the preceding two hundred and fifty-six (256) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 23 November 2015
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