FEDERAL COURT OF AUSTRALIA

 

 

Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240

 

CATCHWORDS


IMMIGRATION – appellant denied protection visa – decision affirmed by Refugee Review Tribunal – Tribunal had received additional submissions from appellant after decision maker had forwarded reasons for decision to registry for recording and dissemination – whether Tribunal was functus officio at the time submissions received – whether Tribunal obliged to have regard to additional late submissions – whether failure to consider submissions constituted a reviewable error under s 420(2)(b) and s 476 of Migration Act 1958.


Migration Act 1958 (Cth), s 55, 415, 420(2), 425, 427, 430, 439, 476, 476(1), 485

 

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, [1999] HCA 21

Evans v Friemann (1981) 53 FLR 229

Rice Growers Co-operative v Bannernan (1981) 56 FLR 443, (1981) 38 ALR 535

Jayasinghe v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 532, (1997) 76 FCR 301

Attorney-General (Cth) v Queensland (1990) 25 FCR 125

Makisi v Minister for Immigration and Multicultural Affairs (1995) 37 ALD 420

Schokker v Commissioner of Taxation (1998) 38 ATR 339, 98 ATC 4263

Neal v Commissioner for Superannuation (1987) 6 AAR 532, 76 ALR 261; 13 ALD 460

Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339

R v Hertfordshire County Council; Ex parte Cheung 26 March 1986, TLR 4 April 1986

R v Kensington & Chelsea Rent Tribunal; Ex parte MacFarlane [1974] 1 WLR 1486 at 1493

Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400

Sloane v Minister for Immigration, Local Government and Ethnic Affair (1992) 37 FCR 429 at 443

Minister for Immigration and Multicultural Affairs v Capitly [1997] FCA 193

Austereo v Trade Practices Commission (1993) 41 FCR 1

Sellamuthu v Minister for Immigration and Multicultural Affairs[1999] FCA 247


GETACHEW SEMUNIGUS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

 

A33 OF 1999

 

SPENDER, HIGGINS, MADGWICK JJ

16 MARCH 2000

CANBERRA


IN THE FEDERAL COURT OF AUSTRALIA

 

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A33 OF 1999

 

On appeal from a single Judge of the Federal Court of Australia

 

BETWEEN:

GETACHEW SEMUNIGUS

Appellant

 

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

 

JUDGES:

SPENDER, HIGGINS, MADGWICK JJ

DATE OF ORDER:

16 MARCH 2000

WHERE MADE:

CANBERRA

 

THE COURT ORDERS THAT:


The appeal be dismissed with costs.


IN THE FEDERAL COURT OF AUSTRALIA

 

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A33 OF 1999

 

On appeal from a single Judge of the Federal Court of Australia

 

BETWEEN:

GETACHEW SEMUNIGUS

Appellant

 

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

 

 

JUDGES:

SPENDER, HIGGINS, MADGWICK JJ

DATE:

16 MARCH 2000

PLACE:

CANBERRA


REASONS FOR JUDGMENT

SPENDER J:

1                     I have had the advantage of reading in draft form the Reasons for Judgment of Higgins J. I agree with his Honour that the appeal should be dismissed, but for different reasons.

2                     The sole ground of appeal argued was that the primary Judge “erred in finding that the Tribunal was functus officio at the time that the further submissions from the Appellant were received on 12 June 1998.” In relation to this ground, the amended application for an order of review of the Tribunal’s decision by the Federal Court had alleged:

“that procedures that were required by the Act to be observed in connection with the making of the decision were not observed: s 476(1)(a).

In particular:

(b) the Tribunal failed to act according to substantial justice and the merits of the case as it is required to by s 420(2)(b) in that it:

(iii) made its decision without regard to the evidence and submissions given to the Tribunal on behalf of the applicant on 12 June 1998.”

3                     In considering the ground of appeal it is necessary to have regard to the chronology of events, as set out below.

4                     The appellant, by an application received in the department on 3 June 1997, sought a Protection Visa. On 29 October 1997, the delegate of the Minister refused the application. By an application dated 26 November and received on 28 November, 1997 the appellant sought review of the delegate’s decision by the Refugee Review Tribunal. The reasons of the Tribunal recite:

“The applicant, Ms Kerry Stewart from TRANSACT and Ms Kate Hayes from Fenner Hall gave evidence before the Tribunal. Ms Jennifer Tode from Australian Red Cross was present and the applicant was represented by Mr. G. Lombard. The Tribunal sat in Canberra after acceding to a submission from the applicant’s adviser that taking evidence from the applicant by video was not appropriate.”

5                     The hearing of oral evidence before the Tribunal was on 29 May 1998. In the course of that hearing, the Refugee Review Tribunal gave the appellant leave to file further submissions on “country information”. A letter dated June 1998 from George Lombard Consultancy Pty Ltd, a registered migration agent acting for the appellant, to the Deputy Registrar of the Refugee Review Tribunal commenced:

“Dear Sir,

I refer to the hearing and appeal by Mr Getachew Semunigus by Member Kissane in Canberra on Friday 29 May 1998.

At the conclusion of the appeal Member Kissane kindly offered the applicant the opportunity to make further submissions on country information relating to the EPRP. As I stated at the hearing, the applicant cannot be certain that it is his earlier EPRP connection which is the cause of his abandonment and dismissal….”. (emphasis added)

6                     The letter concluded:

“Thank you for your patience in reviewing this material. The applicant has, I am sure, consistently tried to do his best in providing information, however it is equally clear he has consistently failed to come to terms with the central fact of his claims, his summary and arbitrary abandonment. I trust the Tribunal will be able to decide his case with compassion.”

7                     To me this statement indicates finality in the stream of submissions.

8                     Submissions by the appellant after the oral hearings were forwarded to the Refugee Review Tribunal by the letter referred to above and by that dated 11 June 1998. These later submissions did not foreshadow any proposal or request to put yet further submissions to the RRT.

9                     The learned primary Judge proceeded on the basis of facts that were either agreed or not contested, as outlined in the applicant’s submission:

“6. The RRT member signed his decision on 12 June 1998 and handed the decision to the RRT registry staff for processing. The RRT member had no further involvement with the matter.

7.                  At approximately 4.39pm on 12 June 1998, after the RRT member had signed his decision and passed it to the RRT registry staff for processing, the applicant’s adviser sent further submissions to the RRT.

8.                  On 16 June the RRT registry staff produced two unsigned copies of the decision (for the applicant and the Department of Immigration and Multicultural Affairs). They affixed the RRT seal on the documents and wrote the date 16 June 1998 within the seal on each copy (this sealing of an unsigned copy of the decision accorded with the Registry’s usual practice). By letter dated 18 June 1998, a Deputy Registrar of the RRT advised the applicant of the decision and enclosed the sealed copy of the decision.”

10                  The primary Judge in his reasons said:

“The only issue I am being asked to determine at this stage is whether the Tribunal was functus officio when the applicant’s further submissions were received. If I conclude it was not, further submissions will be made on whether the Tribunal was obliged to consider them given their particular character.”

11                  I agree with the holding of the primary Judge that:

“…the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion – as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.”

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”).

13                  However, even if the RRT was not functus officio before 4.39pm or shortly thereafter on 12 June 1998, in my opinion the appellant is still not entitled to succeed on his appeal. The ultimate question is whether the RRT erred in law in failing to have regard to the material that was submitted by facsimile at that time – namely the letter dated 12 June 1998 attaching a further statement from the applicant.

14                  Prior to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, the Full Federal Court in that case had decided that a failure to act according to substantial justice and the merits of the case within the meaning of s 420(2)(b) of the Act constituted a reviewable ground as set out in s 476(1)(a), namely non-observance of a procedure required by the Act. The appellant’s case before the learned primary Judge was conducted after the decision of the Full Federal Court and before the High Court had given its decision in Eshetu. The appellant’s case before the primary Judge was that the failure to have regard to the materials submitted on 12 June 1998 was a reviewable error by virtue of the interaction between ss 420(2)(b) and 476(1)(a) of the Act. I have earlier set out the relevant ground of the amended application for an order of review.

15                  After the primary Judge gave his judgment on 14 April 1999, the High Court in Eshetu held on 13 May 1999 that a failure to act as required in s 420(2)(b) of the Act does not constitute non-observance of a required procedure within the meaning of s 476(1)(a).

16                  Section 485 of the Act provides that the Federal Court does not have any other jurisdiction in respect of decisions of the Tribunal apart from that conferred (and defined) by s 476. Section 476(2)(a) provides that the following is not a ground upon which an application may be made under subs (1):

“(a) That a breach of the rules of natural justice occurred in connection with the making of the decision; …”.

17                  The claim by the appellant that the RRT erred in law in failing to have regard to the material submitted on 12 June 1998, in my opinion, is an assertion within s 476(2)(a) and therefore is not a ground on which Mr Semunigus can challenge the decision of the RRT.

18                  The complaint therefore is really one which the Act specifically precludes from being a ground of review in the Federal Court.

19                  Further, in my opinion, there was in truth no breach of the rules of natural justice in connection with the impugned decision. Implicit in Mr Semunigus’s complaint is a claim to be entitled to make the further and belated submissions transmitted by facsimile at 4.39pm on 12 June 1998, and a corresponding obligation on the Tribunal to consider them.

20                  The rules of natural justice do not require that the Tribunal receive as many submissions as an applicant chooses to submit at any time prior to the making of a decision in the applicant’s case. An applicant is entitled to a reasonable opportunity to present his case and to be given a reasonable opportunity of answering matters adverse to a favourable disposition of his case. In the factual circumstances outlined above, Mr Semunigus was accorded natural justice and there was, in my opinion, no entitlement to have the Tribunal consider the last submissions communicated to the Tribunal, after it had received his written submissions, heard oral evidence from him and witnesses on his behalf and received yet further written submissions permitted by leave of the Tribunal after the oral hearing.

21                  In summary, even if the Tribunal was not functus officio at the time of receipt of the last submission on behalf of Mr Semunigus (which I think is probably the position in this case), the rules of natural justice did not oblige the Tribunal to have regard to that submission; even if the rules of natural justice did so require the Tribunal to consider that submission, a breach of that obligation is not a permissible ground upon which Mr Semunigus could seek review of the decision of the Tribunal.

22                  For these reasons, the appeal should be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.


Associate:


Dated: 16 March 2000


IN THE FEDERAL COURT OF AUSTRALIA

 

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A33 of 1999

 

On appeal from a single Judge of the Federal Court of Australia

 

BETWEEN:

GETACHEW SEMUNIGUS

Appellant

 

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

 

 

JUDGES:

SPENDER, HIGGINS, MADGWICK JJ

DATE:

16 MARCH 2000

PLACE:

CANBERRA


REASONS FOR JUDGMENT

HIGGINS J:

23                  This is an appeal from a decision of Finn J.

24                  The appellant is a citizen of Ethiopia. He arrived in Australia on 4 March 1995. On 30 May 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs, pursuant to the provisions of the Migration Act 1958 (Cth) (the Migration Act). It was refused by a delegate of the Minister on 29 October 1997. On 28 November 1997, the applicant sought review of that decision, as permitted by the Migration Act, by the Refugee Review Tribunal (RRT). That review resulted in an affirmation of the original decision. That decision was dated 12 June 1998.

25                  An appeal was, as the Migration Act permits, made to a single judge of this Court. Finn J heard it. On 14 April 1999, his Honour handed down reasons for judgment. The appeal was dismissed with costs.

26                  On 5 May 1999 an appeal to the Full Court was instituted. That appeal was heard on 11 August 1999.

27                  The sole ground of appeal relied upon by the appellant was that the Tribunal erred in failing to have regard to “new evidence” submitted on his behalf.

Sequence of events in relation to “New Evidence”

28                  The appellant had supported his claims for protection by way of written submissions, an oral interview with a departmental officer, and then, by oral evidence given on 29 May 1998.

29                  The matters thus advanced were relevant to determining whether the appellant had a well-founded fear of persecution so as to fall within Article 1A(2) of the 1951 Convention relating to the Status of Refugees (as amended). Those provisions are set out in the judgment of Finn J. It is not suggested that either his Honour, or the RRT, misapprehended or misconstrued those provisions.

30                  The appellant is of Amharic ethnicity. He had come to Australia to engage in studies sponsored by the United Nations but administered from Addis Ababa. He was, between 1988 and 1995, employed by the Ethiopian Government as a senior expert in the Ministry for External Economic Co-operation.

31                  He had suffered persecution under a previous, notoriously repressive regime known as “the Dergue” by reason of his then membership of the youth wing of the Ethiopian Revolutionary People’s Party (ERPP). That regime was replaced in the late 1980’s by the Ethiopian People’s Revolutionary Democratic Front (EPRDF).

32                  The EPRDF, he claimed, was dominated by Tigrean ethnic interests. It regarded former members of ERPP with suspicion. It had sought to restrict the free exercise of the Ethiopian Orthodox religion to which the appellant adhered. It had, after sending him to Australia on a UN scholarship, cut off his funds. He had, he said, expressed political opinions adverse to EPRDF.

33                  Based predominantly on reports prepared by the Department of Foreign Affairs and Trade (DFAT), the Minister’s delegate found that the appellant genuinely entertained a fear of persecution should he be returned to Ethiopia, but that those fears were objectively unsubstantiated.

34                  It is necessary to consider the course of the challenge made to this finding before the RRT. The appellant was assisted in that challenge by Mr George Lombard, a registered migration agent.

35                  On 28 April 1998, Mr Lombard forwarded a letter from an Ethiopian “friend and legal representative” of the appellant, together with a statement of the appellant. The appellant expressed his analysis of and fears concerning the EPRDF government. The appellant asserted that, just before his departure to study in Australia, he had been threatened with reprisals if he did not join EPRDF.

36                  Mr Lombard wrote again on 28 May 1998, forwarding statements from Ms Kate Hayes of Fenner Hall (ANU) and Ms Jennifer Tode of Red Cross (ACT). The former deposed to the failure of the Ethiopian Government to pay the appellant’s stipend, and the profoundly distressing effect it had on him both mentally and physically. The appellant’s thesis was rejected thus ending his post-graduate studies. He seemed afraid to return to Ethiopia with a one-way ticket. In Ms Hayes’ view, he had no support from and appeared abandoned by the Ethiopian Government. Ms Tode confirmed that the appellant had, apparently genuinely, expressed fears of returning to Ethiopia.

37                  Those statements, whilst supporting the finding that the appellant had a genuine fear of persecution if he was returned to Ethiopia, did not add support to the view that his fear was well-founded. There was also forwarded an Internet report of the death of an opponent of the EPRDF regime, one Assefa Maru. That report was of doubtful provenance, though, no doubt, it fuelled the fears entertained by the appellant.

38                  A person assisting the appellant, Ms Kerry Stewart of the Rehabilitation and Network Service ACT (TRANSACT), commented upon evidence given by the appellant to the RRT, constituted by Mr Brendan Kissane. That evidence was directed towards supporting the truthfulness of the appellant’s account from a psychological perspective and to explain his perceived inability to convey his feelings “about his current situation and his fear of returning to Ethiopia”.

39                  The critical further correspondence followed after the appellant had given oral evidence to Mr Kissane. It comprised a letter from Mr Lombard dated 12 June 1998. It is date-stamped “RECEIVED 15 JUN 1998 REFUGEE REVIEW TRIBUNAL MELBOURNE”. It was addressed to the Deputy Registrar of the RRT. It asserted that the appellant had had “a period of lucidity” and found himself able to write a further statement concerning the issues relevant to his refugee status. It is this statement which is said to have been the “new evidence”.

40                  The statement drew attention to the fact that the appellant had been employed during the last year of the Dergue in the bureaucracy of that regime. The appellant had been given the task of diverting aid funds to bolster the failing military might of the Dergue. At that time, part of the opposition to the Dergue was coming from the EPRDF. The role played by the appellant in supporting the Dergue regime could, he feared, have come to the notice of the EPRDF Government. As against that, of course, the appellant had on one occasion been detained and tortured by the Dergue as a result of his activity, though a decade before, in the youth wing of ERPP.

41                  The appellant put forward the hypothesis that his adverse treatment by the Ethiopian Government, after his arrival in Australia was due to the discovery by EPRDF of his role in supporting the Dergue.

42                  There had been an earlier letter from Mr Lombard. It was dated “June 1998” but the parties agreed it was 11 June 1998. It addressed the possible reasons for the appellant’s dismissal from his government position and the associated cessation of his support from his government.

43                  This letter contained a statement which speculated as to whether EPRDF “bosses” had identified the appellant as a “strong political opponent”. Of course, as the appellant rightly agreed, his act of seeking a protection visa might itself place him in danger.

44                  It is apparent from the Tribunal’s reasons that neither of these statements were taken into consideration by Mr Kissane before he published his reasons for decision of 12 June 1998.

45                  Mr Kissane was persuaded to reject the hypothesis that the appellant had been “abandoned” because of his former ERPP connections. He felt that:

“If the applicant were at any risk of adverse treatment from the current regime as a result of records held during the Dergue regime the Tribunal considers it would not have taken until 1996 for this to have been discovered.”

46                  It followed from that that Mr Kissane concentrated upon the treatment of ERPP activists by EPRDF, not its treatment of former Dergue collaborators. There was, in Mr Kissane’s view, no persuasive evidence of serious adverse consequences from EPRDF directed to former or even current ERPP activists. Nor was religious persecution regarded as a likely source of the adverse consequences suffered by the appellant.

47                  So far as Mr Kissane was concerned, there was nothing to displace the prima facie view that the appellant was dismissed from employment for failure to return to Ethiopia once his studies had terminated (albeit that the appellant attributed the termination of his studies to the failure to pay his living allowance).

48                  It is apparent that the fear of discrimination amounting to persecution as a result of having been a collaborator with the Dergue was neither previously advanced nor, as a result, considered by the decision-maker.

49                  It may be assumed that, had it been simply a case of the appellant seeking the Tribunal’s indulgence to make a late submission, even raising a matter which would, usually, have been expected to have been raised earlier, the appellant, given his psychological and physical disabilities, would have had a reasonably arguable claim to that indulgence. That is not to say that it would have been a reviewable error to have declined to grant it.

50                  Indeed, Mr Lombard had, out of concern for the appellant’s worsening state of health, earlier urged expedition in the consideration of the appellant’s case.

The making of the “Decision”

51                  It was not contested that, on 12 June 1998, Mr Kissane signed his previously prepared reasons for decision. He then handed the signed decision to registry staff for dissemination and recording.

52                  The further submissions were received at 4.39pm on that day. Although there is no indication as to whether those “further submissions” included the letter and attachment of 11 June 1998, they certainly included the letter and handwritten statement of 12 June 1998.

53                  It is not clear what, if anything, the Deputy Registrar to whom the letter was addressed did with it and its attached statement.

54                  On 16 June 1998 the RRT Registry staff produced two unsigned copies of the decision. One was for the applicant, the other for the Minister. The RRT’s seal was affixed. The seal was dated “16 June 1998”. The copy for the applicant was forwarded by letter dated 18 June 1998.

55                  The parties do not suggest any error in the statement of principle adopted by Finn J in order to determine when, for the purposes of the application of the doctrine of “functus officio”, a decision has been made. To quote his Honour, at par 19-20:

“19. For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion – as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.

20.               What constitutes such an act can obviously vary with the setting in which the decision is made; it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision’s having been made, etc.”

56                  His Honour then made reference to relevant provisions of the Migration Act. Section 430 sets out the procedure which is to be followed where the Tribunal “makes its decision on a review” (s 430(1)). It is unnecessary to set that provision out fully. It required a written statement of reasons to be prepared and then, within 14 days from when the decision is made, the RRT must “give” (s 430(2)) a copy to both the applicant and “the Secretary”.

57                  The right to review by the Federal Court depends on the lodging of an application to review such a decision “within 28 days of the applicant being notified of the decision” (s 478(1)(b)).

58                  His Honour was also advised that the administrative processes within the Registry recorded the “final decision” as being dated “12/6/98”. That, in his Honour’s view, had the practical effect of identifying the date of the decision and set the date from which obligations consequential on the making of a decision arose. Thus, as at the time the “new evidence” was received, the RRT had already made its decision and was, therefore, functus officio.

The Submissions of the Appellant

59                  The appellant submits that his Honour erred in finding that, by preparing and signing reasons for decision and delivering them to the RRT Registry, the RRT had become functus officio. He submits that the notification provisions of s 430(2) of the Migration Act, must be complied with before a decision can be said to have been made.

60                  It is further submitted that a “decision” communicated to no-one else must be meaningless. It cannot be acted upon by those enabled or required to do so. A “decision” without reasons communicated would be “significantly incomplete”.

61                  This, it is suggested, mandates the conclusion that, to be validly made, a decision must not only finally conclude the matter to be determined but also be communicated to the parties affected by it, including the reasons for it.

62                  Thus, until the decision was, on 18 June 1998, delivered to the appellant, it had not been “made”. That date, of course, is after, not only 12 June 1998 when the “new evidence” was faxed to the RRT, but after 15 June 1998 when it was stamped as “RECEIVED” in the RRT Registry.

The Submissions of the Respondent

63                  The respondent submits that, whilst the proximate issue concerns functus officio, the ultimate issue is whether the RRT had erred in law in promulgating its decision without considering the “new evidence”. That legal error, it was submitted, even if made out, would not have constituted reviewable error by reason of s 476 of the Migration Act. In particular, reference was made to s 476(2):

“The following are not grounds upon which an application may be made under subsection (1):

(a)               that a breach of the rule of natural justice occurred in connection with the making of the decision.”

64                  The High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, decided since Finn J’s decision in this matter, held that a failure to act according to “substantial justice and the merits of the case” (s 420(2)(b)) did not, of itself, constitute a ground for review under s 476(1)(a); ie:

“that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed.”

65                  Thus, the respondent submits, it is not necessary to decide whether the ground for review relied on is made out if, in substance, that ground asserts that the decision was tainted by a breach of the rules of natural justice (s 476(2)(a)) or, even, if relevant, by unreasonableness (s 476(2)(b).

66                  The respondent did not, however, resile from supporting Finn J’s application of the doctrine of functus officio. Mr Howe for the Minister took issue with the appellant’s counsel, Mr Erskine, on the question as to whether notification of the decision was an integral part of the process of making it.

67                  Each party relied for support for his argument on the statement by Fox ACJ in Evans v Friemann (1981) 53 FLR 229, 233:

“The making of a decision by a person is a mental process, which may be communicated orally or in writing, or be apparent from action taken or not taken. The making of the decision might precede, by a very short, or by a long period, communication, or manifestation.

In ordinary usage, the special feature of a decision is its conclusiveness, or finality for the time being, and this is to be contrasted with the thought or consideration which precedes it. … For present purposes at least it seems to me to amount to something of significance which is reasonably definite, which is final and conclusive for immediate purposes at least, which is manifested in some way, which emanates from an authoritative or responsible source, and which materially affects another person or persons.” (see 35 ALR 428, 431)

 

68                  Also, each relied upon the remarks of Northrop J in Rice Growers Co-operative v Bannernan (1981) 56 FLR 443, 453 (1981) 38 ALR 535, 544:

“…there must be some overt act by which conclusions reached as a result of those thought processes are manifested. The manifestation may take many different forms. It may take the form of a verbal or written communication of the conclusion to the person affected. It may take the form of action taken to give effect to the conclusion. It may take the form of no action being taken when otherwise a definite action would have been taken.”

69                  Jayasinghe v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 532 highlights the importance of fixing the time at which a final decision has been made. The decision-maker is thereafter denied the power to re-consider a decision once finally made.

70                  Whether a fresh application can be made, to the original decision-maker or otherwise, is a matter of statutory construction not presently relevant.

When was the decision made

71                  The principle enunciated in the preceding decisions has been consistently applied. Their effect was summarised by French J in Attorney-General (Cth) v Queensland (1990) 25 FCR 125, 142:

“But a decision is more than thought, consideration or conclusion. It must be manifested in some way which emanates from an authoritative or responsible source.”

72                  Burchett J in Makisi v Minister for Immigration and Multicultural Affairs (1995) 37 ALD 420 pointed to the need for more than the mere formation of an opinion. The making of a decision based on an opinion formed may well be manifested by some action taken or refused in consequence of it.

73                  That case and Schokker v Commissioner of Taxation (1998) 38 ATR 339, 98 ATC 4263 each involved a failure or refusal to make an administrative decision. In the latter case the “decision” not to take administrative action was manifested by a letter to the appellant.

74                  The difficulty of inferring that a decision has been made from even lengthy inaction consistent with a decision not to act is illustrated by the case of Neal v Commissioner for Superannuation (1987) 6 AAR 532, 76 ALR 261; 13 ALD 460.

75                  It follows from the above that I accept the submission of counsel for the appellant that there must be some overt act performed by the decision-maker putting it beyond his or her power to recall or change the decision thus made.

76                  However, I agree with counsel for the respondent that delivery of written reasons for decision, together with notice of it, to the parties, though required by s 420(2), is recognised by the statute as an event following the making of the decision to which the reasons relate. It is not an integral part of the process of making the decision.

77                  Whilst appeal rights do not commence to expire until delivery of reasons there must be a date before that upon which the decision was made so as to enliven the obligation to undertake the delivery of reasons which, in turn, causes the period for appeal to commence running.

78                  The mere writing of reasons pursuant to an opinion the decision-maker expects to be final does not put it beyond the power of a decision-maker to change his or her mind. Nor, in my opinion, would the signing of a document incorporating such an opinion constitute the making of a decision. It is not beyond recall. No person apart from the decision-maker (and, perhaps, his or her personal staff) is aware that an opinion has been expressed. However, once that decision is published, even if not yet to the affected parties, it is made. After that point, it can be established objectively that the decision-maker has made that decision rather than another. Given the procedures adopted by the RRT, it seems to me that once the reasons for decision were delivered to and recorded in the Registry of the RRT, the decision was made. That is not to say that in a different statutory and procedural context, a decision might not be “made” though less formally recorded or notified.

79                  That is enough to dispose of this appeal. On any view of it, the “new evidence” was received after the decision-maker, in understandable ignorance of its likely existence, had placed it beyond his power to come to any different decision.

80                  In deference to the argument of counsel for the respondent, I will briefly refer to the effect of the High Court decision in Eshetu.

81                  That case, coincidentally, concerned a claim for a protection visa by an Ethiopian national. The claim was based on arbitrary detention and torture which Mr Eshetu claimed to have experienced as a result of voicing opposition to the transitional EPRDF government. The Tribunal rejected that claim. It was unpersuaded as to its truth. Hill J had been unimpressed with the reasoning of the Tribunal in rejecting Mr Eshetu’s evidence of his detention and torture and set aside its decision. On appeal to a Full Court, Whitlam J strongly disagreed with Hill J. He thought the Tribunal’s conclusion to have been correct. However, that was a minority view. Davies J, with whom Burchett J agreed, found that a breach of s 420 left open a challenge to the decision made notwithstanding s 476(2). Thus, in Davies J’s opinion, though breach of the rules of natural justice or of the duty to act reasonably is no ground for setting aside a decision, a failure, if egregious enough, might breach s 420 if the process was thereby to be characterised as not “according to substantial justice and the merits of the case”. They upheld Hill J’s opinion.

82                  Gleeson CJ and McHugh J bluntly rejected that approach. In their Honours’ view, s 420(2)(b);

“(589, par 51) …was intended to define the jurisdiction of the Federal Court in relation to judicial review of the Tribunal’s decisions by excluding as a ground of review the ground relied upon by Mr Eshetu.” (ie unreasonable or illogical reasoning)

83                  However, it was also accepted by their Honours that the RRT’s decision was not one which, though it might or might not be open to valid criticism, could be characterised as tainted by “Wednesbury unreasonableness”.

84                  Gummow J agreed with Lindgren J in Sun Zhan Qui v Minister for Immigration and Multicultural Affairs [1997] 324 FCA (6 May 1997); (reversed on appeal at 81 FCR 71; 151 ALR 505). Lindgren J had concluded that s 476(2)(a) was intended to limit the available grounds for review.

85                  In the view of Gummow J it was not open to this Court to review such a decision on prerogative writ grounds by way of an alternative to the grounds available under the Migration Act, though the High Court, as Gummow J noted, could, in an appropriate case, do so under s 75 of the Constitution. Nevertheless, even so:

“[p 609, par 137] …where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.”

86                  Although on one view of it, Mr Eshetu’s account was not directly contradicted by any other evidence, there was “probative material” which supported its rejection.

87                  Hayne J agreed with Gleeson CJ and McHugh J. Callinan J in a separate substantive judgment concurred with the majority, also agreeing with Lindgren J in Sun (supra).

88                  In the present case, the most that can be said in criticism of the RRT decision-making process is that, due to some administrative error in the RRT’s Registry, the further submissions and evidence of the appellant, putting a new case for being regarded as a person whose fear of return to Ethiopia was “well-founded”, were not drawn to the RRT’s attention.

89                  That conduct cannot be characterised as a lack of good faith or a manifestation of bias. If it was “procedurally unfair”, it does not go beyond the ground expressly excluded (by s 476(2)(a)) as a ground for review.

90                  In any event, in my view, even apart from the fact that the RRT was then functus officio, it by no means follows that the RRT member, had he been informed that “fresh evidence” was being forwarded to the RRT, was obliged either to wait for or consider that further material before coming to and publishing his decision.

91                  The RRT is exhorted by s 420(1) not only to be “fair” and “just”, but also “economical, informal and quick”. That would tend to suggest that the RRT is not bound to give repeated opportunities to an applicant to put forward his or her case. Of course, informality would not entitle the RRT to apply rigidly some sort of case management guidelines either (see eg. Queensland v JL Holdings Pty Ltd (1997) 189 (LR 146)). Nor to deny any genuine or effective opportunity to be heard (see Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339).

92                  Nevertheless, this was not a case where a chance to place relevant material before the Tribunal was unreasonably declined. Even if it had been the denial of such an opportunity would, to be reviewable, have had to fall outside the excluded grounds for review whilst constituting a breach of s 420 or some other non-excluded ground for review.

93                  The material forwarded was relatively brief. It may be that, had the RRT been aware it was coming, fairness would have required that it be considered before the decision was made. I express no concluded view as to that question. That is also a different question from a question as to whether a failure to consider such material, even in such circumstances, would have amounted to a reviewable error.

94                  It is unnecessary to express a concluded view as to that question.

95                  In my opinion the appeal must be dismissed with costs.


I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Higgins



Associate:

Dated: 16 March 2000


IN THE FEDERAL COURT OF AUSTRALIA

 

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 33 OF 1999

 

On appeal from a single Judge of the Federal Court of Australia

 

BETWEEN:

SEMUNIGUS

Appellant

 

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

 

 

JUDGES:

SPENDER, HIGGINS AND MADGWICK JJ

DATE:

16 MARCH 2000

PLACE:

CANBERRA


REASONS FOR JUDGMENT

MADGWICK J:

96                  I have had the benefit of reading the reasons of Higgins J in draft. I can therefore be relatively brief.

The essential facts

97                  The appellant is a psychologically impaired applicant for refugee status with a genuine fear of return to his homeland. The question for the Refugee Review Tribunal was whether his fear met the requirements of the relevant Convention, that is, whether it was a “well-founded” fear of persecution for one or more of the reasons recognised in the Convention definition. The appellant wished to put new and late material before the RRT after he had had both a hearing and a further opportunity to put in supplementary material. His agent sent that material to the RRT member who had heard his case. By the time it arrived, the RRT member had formulated a decision and reasons for it adverse to the appellant, and had put in train internal RRT procedures to have the appellant and the respondent Minister notified of the decision and reasons. However, no irrevocable step had been taken to notify them. The RRT member was not told, by those in the service of the RRT who received it, of the new material nor of the applicant’s desire to rely on it. It is not a foregone conclusion that the new material could not sustain the applicant’s claim to have a well-founded fear of persecution for a Convention reason. Nor is it a foregone conclusion that, had the RRT member been given the opportunity of considering the application to have the new material considered, such an application must necessarily have failed.

98                  This case raises the question whether the applicant is to have no redress against the bureaucratic short shrift that he apparently suffered at the hands of (or as the result of oversight by) the RRT’s clerical staff, and whether he had a remediable right at least to have his application, that further material be taken into account, considered by the RRT member seised of his case.

“Functus Officio”

99                  The case was conducted before Finn J on the assumption that, if the RRT member had made a decision, the RRT’s statutory power to consider the applicant’s claims was thereupon exhausted. There may, however, be cases, despite decisions such as Jayasinghe v Minister for Immigration and Multicultural Affairs (1997) 76 FCR 301 (with which, in general, I respectfully agree), where even after a decision of sorts has been communicated to the parties, the RRT can still recall the matter: see, for example, R v Hertfordshire County Council; Ex parte Cheung 26 March 1986, TLR 4 April 1986, R v Kensington & Chelsea Rent Tribunal; Ex parte MacFarlane [1974] 1 WLR 1486 at 1493 and Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400. In Leung Finkelstein J (with whose reasons Beaumont J agreed) said:

“If the decision is valid when made can it be ignored merely because all of the interested parties wish it to be ignored? Surely the decision-maker could only act in pursuance of the statute that defined his or her powers. I do not see how jurisdiction to ignore any act can be conferred on a statutory decision-maker merely by the consent of the persons who might be affected by that act. It is the Parliament, through its legislation, that confers power on a decision-maker and not those citizens whose rights, privileges or interests might be affected by the decision-maker.


But what if the decision is invalid? Can the decision be ignored if the consent of all interested parties is obtained or is there some other principle that governs the situation? In my opinion, the true principle is this. To ignore an invalid decision is not to revoke it.”

100               The Tribunal might recall a decision, for example, where the RRT has erroneously failed to consider at all an applicant’s submission. There would be no injustice to anyone in the RRT itself, in such a case, taking the view that there had really been no decision at all and any inconvenience to the Minister (and even some probable waste of department officers’ time) would be outweighed by the injustice and inconvenience to the applicant of otherwise being required to embark on curial litigation in order to rectify a very plain failure to consider the case properly. But that need not be considered in any detail here, because there was, in my view, no decision given by the RRT at the point when the RRT’s staff should have drawn the appellant’s application to the relevant member’s attention.

When is a Refugee Review Tribunal decision made?

101               As a general statement of principle I cannot better the way Finn J expressed it:

“For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.

What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision’s having been made, etc.” (emphasis added)

However, I cannot agree with his Honour’s application of the principle.

102               As a matter of undoubted fact, the conclusion to which the RRT member had arrived in his own mind had not been communicated to anyone outside the RRT’s own staff. The taking of administrative steps, as part of an orderly general system of case management, to have support staff communicate the decision (and the reasons for it) to the parties could therefore plainly have been halted or countermanded by the RRT member. That must be the case, as a matter of administrative necessity: a RRT member might have had second thoughts about the proper factual conclusions in a case; or a new judicial decision might change the member’s understanding of the relevant law. Mere case management practices, even if publicly decreed, cannot stand in the way of justice being done: Queensland v JL Holdings (1997) 189 CLR 146.

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.

104               As a matter of the RRT’s usual practice, the “overt act”, in Finn J’s apt phrase, required to complete the decision will generally be the dispatch of the s 430(2) statement. In such a case, s 430(2) is complied with by the very act of making the decision. But that is only so because of the way the RRT has chosen to complete the making of the decision. That usual practice is not, however, the only way that a decision may legally be completed. It might be completed by the RRT communicating it orally to an applicant at the conclusion of a hearing: the RRT might wish to end an applicant’s uncertainty as to his or her fate at the earliest opportunity, the case may be as plain as a pikestaff, yet it may still take some time to prepare the s 430(2) statements.

105               Section 430 of the Act is chiefly relevant to this matter for the distinction it draws between the making of the decision and the preparation of a written statement of it and about it. The purposes of the distinction and the time limits are, in my view, principally to insist that full written reasons for the decision are given, that this be done promptly, and to ensure that the Minister as well as the applicant will have timely written notice of the decision itself. The decision itself may, as I have indicated, be given, or “made”, orally. Section 430(2) recognises that the subs (1) “statement” is to be prepared after the “decision … is made”. It is silent as to how and when the decision itself is made. There is, in my opinion, no decision unless it is pronounced or such steps are taken towards its pronouncement as would make it embarrassing to the RRT that the pronouncement of what has been concluded should not be effectuated. Section 439 obliges the RRT’s staff to observe confidentiality; there can be no embarrassment to the RRT in their knowing that the RRT has decided to reconsider an intended decision. The mere adoption and execution of processes, not statutorily required and entirely internal to the RRT’s own establishment, cannot in my view qualify as the necessary “overt act”. Neither a general understanding of when a decision such as those made by the RRT is complete, nor the specific terms and context of the Act require that the antecedent actual decision is to be regarded as complete despite its non-communication to anyone except the RRT’s own privies.

A right to have the late material considered?

106               That, of course, does not conclude the matter. The second question is: Does an applicant have a right, remediable in this Court, to have the RRT consider a late application to place further material before the RRT? I leave aside cases where all reasonable time to finalise a matter has elapsed or where all reasonable patience on the part of the RRT has been exhausted. This is hardly such a case.

107               Some of the policy considerations relevant to the somewhat different question of whether a decision may be, in effect, recalled and reconsidered were rehearsed in Sloane v Minister for Immigration, Local Government and Ethnic Affair (1992) 37 FCR 429 at 443:

“The question is one of statutory construction. It is not without difficulty and is attended by policy considerations that are in some degree in conflict. The implication into an express grant of statutory power of a power to reconsider its exercise would be capable, if not subject to limitation, of generating endless requests for reconsideration on new material or changed circumstances. Each decision taken in the exercise of such an implied power would arguably attract the application of the Administrative Decisions (Judicial Review) Act … Against the difficulties that may arise from the implication of a power to reconsider a decision there is the convenience and flexibility of a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened without the necessity of invoking the full panoply of judicial or express statutory review procedures. There is nothing inherently angelic about administrative decision-making under the grant of a statutory power that requires the mind that engages in it to be unrepentantly set upon each decision taken.”

Such considerations are not without general relevance to the present question.

108               It is true that a breach of the rules of natural justice (although required by the Act of the RRT, see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21) is not a ground for judicial review in this Court by virtue of s 476(2) and that the RRT was only expressly obliged to give the applicant “an opportunity to appear before it to give evidence” by s 425 of the Act (this opportunity must be a reasonable one, see Minister for Immigration and Multicultural Affairs v Capitly [1997] FCA 193). However the RRT had a number of other relevant powers and duties: under s 414 the RRT was obliged to “review” the decision complained of; under s 415(1) and s 55 the RRT had the power to have regard to additional relevant information; s 420(2) enjoined the RRT to act according to substantial justice and the merits of the case and not to be bound by technicalities; under s 427 the RRT had power to adjourn the review “from time to time”.

109               Where late material is tendered which might reasonably affect the RRT’s view as to what would be the correct or preferable decision, and some excuse for the delay is offered which might be reasonable, in my view it would be proper to interpret the Act as impliedly requiring the RRT to consider whether or not to exercise its powers to receive such material. (Circumstances in which statutory implication may be considered to be “proper” are considered in Austereo v Trade Practices Commission (1993) 41 FCR 1, Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 at 315 and Bennion Statutory Interpretation 2nd ed. 1992 at p 367. I take those cases to have recognised a modern test of “propriety” for the acceptance of statutory implication). Such an interpretation better serves the manifest objects of the Act, which include ensuring that the correct decision is made in refugee cases, as well as efficiency in their dispatch (see generally Sellamuthu v Minister for Immigration and Multicultural Affairs[1999] FCA 247) and would help to ensure that decisions which may have catastrophic consequences for applicants are not made through mere inadvertence to vital material or justifiable and tolerable delay in bringing it forward.

110               The RRT is surely to be held responsible for the failure of its staff to refer the matter to the relevant member. Anything else would tend to reduce and divide the RRT’s authority and to immunise clerical errors that could have dire consequences.

Reviewability

111               It follows that, in not recognising that the RRT had an important implied duty under the Migration Act in the process of conducting a review, the decision involved an “error of law, being an error involving an incorrect interpretation of the applicable law” within the meaning of s 476(1)(e). Additionally or alternatively, a procedure impliedly required (see Sellamuthu) by the Act was not observed and s 476(1)(a) would be attracted. Likewise, the decision was not one which was “authorised by” the Act on its true construction and s 476(1)(c) would apply.

112               If the RRT staff, who did not give the RRT member the opportunity to consider the matter, are to be taken as having properly acted in accordance with a procedural decision or instruction of the RRT, then the inference is that the RRT has decided never to look at late material. For the reasons just given, this is contrary to the RRT’s implied duty under the Act to consider, at least in some cases, whether it should look at late material. Further, any such decision or instruction would have the effect of arbitrarily limiting the matters for consideration by the RRT in reaching its final decision. That final decision then might also amount to an “improper exercise of the power conferred by [the Act]” as an “exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case” and would be reviewable as such in this Court under s 476 (1)(d) and (3) of the Act.

113               None of this, of course, is to say that, had the RRT considered whether to have regard to the late material, it would necessarily have decided to take the material into account. The point is that, in my opinion, it was legally wrong that the RRT did not embark on such a consideration.

Disposition

114               For these reasons I would allow the appeal with costs, quash the RRT’s decision and remit the matter for reconsideration by the RRT.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.



Associate:


Dated: 16 March 2000



Counsel for the Appellant:

Mr C Erskine

Solicitor for the Appellant:

Barker Gosling

Counsel for the Respondent:

Mr T Howe

Solicitor for the Respondent:

Australian Government Solicitor

Date of Hearing:

11 August 1999

Date of Judgment:

16 March 2000