Minister for Immigration and Multicultural Affairs v Bhardwaj S157/2000 [2001] HCATrans 56 (20 February 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S157 of 2000

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

RAJIV BHARDWAJ

Respondent

Application for special leave to appeal

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 FEBRUARY 2001, AT 2.05 PM

Copyright in the High Court of Australia

MR J. BASTEN, QC: I appear for the applicant with MR R.T. BEECH-JONES, if the Court pleases. (instructed by Australian Government Solicitor)

MR J.R. YOUNG: I appear for the respondent, your Honours. (instructed by Newman & Associates)

McHUGH J: Yes, Mr Basten.

MR BASTEN: Your Honours, the question is whether the Immigration Review Tribunal, having made and distributed a decision, can proceed to make another decision with respect to the same matter. The majority in the Full Court of the Federal Court so held. Justice Lehane, in a dissent with which we substantially agree, suggested no. Your Honours, it was never suggested in this case that the power was not exercised by the Tribunal on or about 17 September 1998 in what the Full Court identified as the September decision, nor was it suggested that the Tribunal had any express power to revoke or set aside its first decision, rather, the Tribunal simply ignored the first decision and gave a second decision.

If the second decision was effective, the first decision must have been either revoked or treated as non-existed, but wherein lay the power of the Tribunal to so treat it, in our submission, the Full Court appears to have reasoned that because if relief had been sought in a court of competent jurisdiction in proceedings to which the Minister would have been a party in relation to the September decision, a court might have concluded that it was not a proper exercise of power and granted mandamus, apparently without certiorari.

McHUGH J: Yes, we might call on your opponent, Mr Basten.

MR BASTEN: Yes, certainly, your Honour.

McHUGH J: Yes, Mr Young.

MR YOUNG: Your Honours, in our submission, the decision of the majority in the Full Court was correct and what is not disputed in the submissions made on behalf of the respondent, nor is the proposition in any way disputed in the decision of the majority, is that as a general principle functus officio applies in relation to the decisions of the relevant tribunals, that is, as it then was the IRT and now the Migration Review Tribunal and the Refugee Review Tribunal.

There is a most limited exception brought about by the particular statutory provisions which does not derogate from the general principle and operates consistently with section 353 of the Migration Act and section 33(1) of the Acts Interpretation Act. The critical difference between this case and cases such as Sloane and Jayasinghe is that what was sought to be done in those cases was that there was sought to be a reconsideration on the merits. In this case, because the Tribunal failed to obey the statutory mandate and to give the review applicant his statutory opportunity, there was no decision on the merits. What the Tribunal did was to recognise its own error and to obey the mandate of section 360 and, by doing so, it brought about a commonsense resolution. The exception to the principle of functus officio, which is - - -

GUMMOW J: What is the statutory provision that confers the power we are talking about that you say was not spent? What is the particular section in your - - -

MR YOUNG: Well, the particular provisions that give rise to it are section 353, section 360 as it then was and section 33(1) of the Acts Interpretation Act. Section 353 requires that the Tribunal:

shall act according to substantial justice and the merits of the case.

By the actions of the Tribunal - and if I can take your Honours to page 15 of the application book where his Honour the primary judge deals with the - - -

GUMMOW J: But 353(2) is an adjectival-type provision. It says that "The Tribunal, in reviewing a decision" shall do certain things. Where is the actual power of review?

MR YOUNG: The actual power of review is contained in Division 5 of Part 5 of the Act and it is our submission that Division 8, which deals with judicial review, does not in any way - Division 5 of Part 5 deals with the conduct of the review. Division 4 deals with the exercise of the Tribunal's powers in the form that the Act was at the time that these provisions were - - -

GUMMOW J: Is it not 348? Is that the right section? Is that the power?

MR YOUNG: That is the obligation to review.

GUMMOW J: Well, power and obligation.

MR YOUNG: Yes. The way in which it exercises its power is section 353 and the conduct of the review is Division 5.

GUMMOW J: But the question is whether the power was spent or, to put it another way, the duty had been discharged.

MR YOUNG: No. Where it has not complied with section 359 or section 360, it is not spent. In other words, section 33(1) of the Acts Interpretation Act applies.

McHUGH J: But that assumes that the decision given is of no force and effect, not even voidable.

MR YOUNG: That is so, that there is no decision when it has not complied with section 359 or section 360.

McHUGH J: But that raises an important point of principle itself.

GUMMOW J: That would be a very large question.

McHUGH J: The question of whether decisions of these tribunals are void or voidable or have any effect whatever is a matter of continuing academic debate and of considerable practical importance.

MR YOUNG: But the only relevant right that a review applicant was given at the time was section 360. Section 360 is no longer there. That is why this is not a suitable vehicle for the determination of issues which may arise in relation to any issues of void and voidable.

McHUGH J: But it gives rise to important questions concerning the authority of these tribunals to revoke decisions, as to whether their decisions are void or voidable and it raises an important question concerning the construction of section 33 of the Commonwealth Acts Interpretation Act.

MR YOUNG: The only way in which the question could now arise under the provision of the Migration Act would be in a situation, for example, where the Tribunal pulled out the wrong file, made a decision about a person, for example, with the same name as the review applicant, and sought to correct that clerical error. The legislature has stepped in and amended section 360 so that - - -

McHUGH J: But you are talking about the very specific facts of the case. Why could not, on your argument, say, the Tribunal say, "There has been a breach by us of one of the matters referred to in section 476 of the Act and, therefore, we will treat our decision as of no effect"?

MR YOUNG: The exception to the principle of functus officio which was recognised by everybody, which was recognised by the submissions made to the primary judge, to the Full Court of the Federal Court - the Full Court of the Federal Court and his Honour the primary judge, recognised a narrow exception to that principle. That narrow exception is based on the existence of an important statutory right. That important statutory right no longer exists, so this is a sterile argument in the context of the - - -

GUMMOW J: What is the important statutory right?

MR YOUNG: Section 360, the opportunity to appear, and that had been - - -

McHUGH J: Yes, but natural justice gives any person that right to appear.

MR YOUNG: Yes, but, your Honour, the important thing in relation to these provisions which make it inapplicable to other tribunals such as Anti-Discrimination Tribunals, State Anti-Discrimination Tribunals and Commonwealth Administrative Appeals Tribunals, is that Part 8 excludes natural justice as a ground of judicial review.

McHUGH J: I appreciate that, but that seems to me to be a reason why special leave ought to be granted, because there is authority for saying that decisions made in breach of natural justice are void - Lord Reid has said it - and with 360 out of it, why could not the Tribunal say to itself, "Well, the decision we gave last week was void and we denied natural justice. True it is it cannot be subject of appeal to the Federal Court, however, we will rehear the matter because we are now convinced that we gave a wrong decision" and then rely on 33 of the Acts Interpretation Act?

MR YOUNG: There is no basis in the decision of his Honour the trial judge or the decision of the Full Court of the Federal Court which would entitle it to do so because it is only - the limitation is this, that it must be, firstly, a denial of an important statutory right. That is criterion No 1. Criterion No 2 - - -

McHUGH J: That surely cannot be sufficient, a denial of important statutory right. It must have consequences.

MR YOUNG: And the consequences are, or the consequence is that because of the denial of that statutory right the Tribunal does not go to a decision on the merits. It does not make a decision on the merits. It does what it did here, at 15, and say, "We have got no option but to proceed on the basis that you have failed to attend". That is why it decided against the review applicant in the first instance. When it did consider the matter on the merits, it found in his favour. In other words, once it cured the defect the failure to comply with section 360 that it committed, it then decided the matter in favour of the applicant.

McHUGH J: Yes, but, Mr Young, that assumes that there was something for it to correct and it had the power to correct.

MR YOUNG: Yes, and we say that that is the only matter in the whole of Division 5 that provides any basis of an important right. That, at that stage, was the only right that was provided by Division 5 of Part 5. So that the only basis that was there in the decision of his Honour Justice Madgwick and the Full Court was where the Tribunal had denied the applicant his or her section 360 opportunity to appear. In 1998 the legislature took that away by providing that all that is now required is that there be an invitation to appear and section 362(b) - - -

McHUGH J: It is 360A these days, is it not?

MR YOUNG: No, it is section 360(1):

The Tribunal must invite the applicant to appear -

Your Honour is correct in that the form of the notice is 360A, but the real significance is 362B(1) which provides that:

If the applicant:

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

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

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

McHUGH J: Yes, but I do not see how you can segregate this one right under 360. Take the present 362A. There is a statutory right "to have access to written material before Tribunal" If there is a denial of that right, is the decision void? Can the Tribunal say, "We have breached an important statutory right and, therefore, we will revoke the decision"? Section 362 gives the applicant a statutory right to request the Tribunal to call witnesses. That is breached. You just cannot isolate 360 from the issues that arise. This is an important point. You may well be right. You may succeed. But it seems to me that there are some important questions that need to be resolved by this Court.

MR YOUNG: Can I return to this issue though, that the critical question is in relation to the denial of the right, "Did the Tribunal make a decision on the merits or not?". If it makes a decision on the merits, then it cannot revisit it. In the Jayasinghe and Sloane-type of cases and Semunigus it cannot consider further material. It cannot revisit its decision, make any reconsideration of the evidence. But in this case what happened was that the matter in relation to section 360, the denial of the opportunity to appear, was the very reason why the Tribunal said, "Well, you haven't availed yourself of the opportunity to appear, therefore, we have to decide the case against you".

The case called out for an explanation. There was no explanation provided. So that the matter was, therefore, fatal to the applicant. The legislature has chosen now to take that opportunity, statutory opportunity, away so that the issue is simply mute and cannot in any further circumstances arise. This is not opening up the floodgates in any way to arguments about functus officio in relation to the operation of the tribunals.

McHUGH J: I am not sure that I appreciate the distinction that you make between the old 360 and the present 360.

MR YOUNG: The old 360 had been decided by the - if I take your Honours to page 50 of the application book, their Honours, the majority, agreed - and I do not think there was any dispute in relation to the dissenting judge, Justice Lehane, of the effect of the decision in Capitly, where an opportunity to give evidence is not given once and for all by the notification to an applicant of a hearing date in the future. The opportunity must be a continuing opportunity and take account of the circumstances which from time to time exist up until the opportunity is either availed of or not.

McHUGH J: But what about the present 360:

The Tribunal must invite the applicant to appear before the Tribunal -

Supposing they do not and he does not appear and they dismiss the application, why does not your argument apply there?

MR YOUNG: In that situation it would. If they had not invited him to appear, they could correct their own error.

McHUGH J: Yes. Well, you say it would but that only means to say that there are important questions of principle still to be resolved, at least by this Court.

MR YOUNG: But these are cases where there has been just no hearing on the merits at all. They are not matters which would involve any issues of a hearing on the merits and then some judicial review in relation to that. It is only of a question of absolute oversight by the Tribunal of the statutory requirements on it, absolutely basal non-compliance by the Tribunal with a right given to a review applicant.

In those extremely limited circumstances the Tribunal can, according to section 353, correct its own error, but it goes no further than that. That is recognised in the decision of the majority. The decision of Justice Lehane, in fact, what underpins that is that this Act is so different from any others that that is what his decision is based on, that the Migration Act is different from other provisions and, in our submission, that is why there was the statutory opportunity to appear and now the notice requirement, because without that and with natural justice excluded, there would be no requirement of any hearing, or none that in any way could be later enforced.

So the Tribunal can correct the most basic of its own clerical errors but provided that there has not been any hearing on the merits. Once it embarks on a hearing on the merits, then it cannot take into account any later evidence to review that. It is not a court of review of its own decisions.

McHUGH J: Yes, thank you, Mr Young. What do you say about the inconvenient vehicle point, Mr Basten?

MR BASTEN: We say that there are a number of points raised. Firstly, in relation to section 362B, to which my friend drew attention, which is set out at page - - -

McHUGH J: Page 14 I think it is.

MR BASTEN: Yes, that is right, of the new Act in the volume of materials. That is sufficiently similar to 362(3) of the old provisions as to make no difference, we would say. Section 360, as your Honour noted, in its new form may still be breached and would be a serious breach one would think. In substance the invitation is really the mechanical feature of giving the person the opportunity. We do not say that it has any difference in any event.

So far as the argument goes that this was not a decision on the merits, it clearly was. The problem for the Tribunal was that, as appears at page 3, it had to proceed "on the information before it", at line 33, which really precluded it from exercising a discretion in favour of the claimant, he not having put any material before it which would assist. With respect, we would say that it is an appropriate vehicle and the issues raised remain material issues for the consideration of the Court.

McHUGH J: Yes. Yes, there will be a grant of leave in this matter.

MR YOUNG: Could I just raise one matter in relation to the conditions of the grant of special leave. At page 64 in the application for special leave there is an order sought that the applicant pay the respondent's costs of the appeal to the Court and that there be no order of the costs of the proceedings before his Honour and the Full Court. There is an inconsistency in relation to page 67 that the orders sought there ask that:

the orders of the Full Court of the Federal Court and of the primary judge (other than the orders as to costs) be set aside -

Given the time in which this decision was made, that is, 1997, and the fact that the actions of the Tribunal are likely to have prevented the review applicant from exercising his rights in the Federal Court, we would ask that it be a condition of the grant of special leave that the applicant pay the respondent's costs in any event, which seems to be common in both the application for special leave and in the draft notice of appeal, but also that it be on the basis set out in the draft notice of appeal, that is, that the applicant would not be seeking to set aside the orders of the Full Court and the primary judge in relation to costs.

McHUGH J: Mr Basten, I take it you do not resile from - - -

MR BASTEN: No, it is not in issue. We do not seek to disturb the costs orders below and we agree to pay reasonable costs of the appeal.

McHUGH J: Costs of the appeal, yes. The Court will now adjourn to reconstitute.

AT 2.29 PM THE MATTER WAS CONCLUDED