FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY [2013] FCAFC 104

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Buchanan J

1    I have had the benefit of reading the judgment of Griffiths and Mortimer JJ in draft. Their Honours’ exposition of the facts and the statutory context of the present appeal avoids the need for me to deal with many of the same matters. However, I find myself in disagreement with their Honours about the outcome of the appeal and so it is necessary to explain why I have come to a different conclusion.

2    Section 5(9) of the Migration Act 1958 (Cth) (“the Act”) provides as follows:

(9)    For the purposes of this Act, an application under this Act is finally determined when either:

(a)    a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

(b)    a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

(emphasis added)

3    The central question in the present case is whether an application by the first respondent for a protection visa made had been finally determined by 24 March 2012 (I will return to the significance of that date in due course). Applying s 5(9) of the Act, that central question must be assessed in the present case by deciding whether a decision of a delegate of the appellant (“the Minister”), which refused the first respondent a protection visa, was no longer subject to any form of review at that date, 24 March 2012.

4    The first respondent (a citizen of Pakistan) applied for a protection visa on 4 March 2010, having arrived in Australia with a temporary business visa. The Minister’s delegate decided on 16 June 2010 to refuse the application. The first respondent then applied to the Refugee Review Tribunal (“the RRT”) to have the delegate’s decision reviewed. The review by the RRT is a review under Part 7 of the Act of a kind referred to in s 5(9).

5    The powers which the RRT may exercise when it reviews a decision not to grant a protection visa are set out in s 415 of the Act, which provides:

415    Powers of Refugee Review Tribunal

(1)    The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(2)    The Tribunal may:

(a)    affirm the decision; or

(b)    vary the decision; or

(c)    if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d)    set the decision aside and substitute a new decision.

(3)    If the Tribunal:

(a)    varies the decision; or

(b)    sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4)    To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations. (emphasis added)

6    When the RRT reaches a decision on a review carried out by it, it is required, unless it first announces the decision orally, to set out the decision, the reasons for the decision and some further matters in a written statement. The decision of the RRT is taken to be made on the date of the written statement. Those directions are contained in s 430 of the Act, which provides:

430    Refugee Review Tribunal to record its decisions etc.

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

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

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

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

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

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

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

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

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

7    When a decision is pronounced orally, s 430D of the Act also requires that a written statement be prepared within 14 days, but the date of the decision is the date on which it is pronounced. In the present case, the decision of the RRT was given in writing and is therefore taken to have been made on the date it showed – 12 March 2012.

8    Section 430A of the Act requires that an applicant for a protection visa who has sought a review by the RRT must be notified of the decision of the RRT by being provided with a copy of the written statement prepared in accordance with s 430 of the Act. One of the methods specified in s 441A of the Act must be used to give the applicant the copy of the written statement. One such method is to post the decision to the address last notified by the applicant.

9    A copy of the written statement must also be given to the Secretary of the Minister’s department.

10    Section 430A of the Act provides:

430A    Notifying parties of Tribunal’s decision (decision not given orally)

(1)    The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 430(1). The copy must be given to the applicant:

(a)    within 14 days after the day on which the decision is taken to have been made; and

(b)    by one of the methods specified in section 441A.

(2)    A copy of that statement must also be given to the Secretary:

(a)    within 14 days after the day on which the decision is taken to have been made; and

(b)    by one of the methods specified in section 441B.

(3)    A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.

11    It should be noted that a failure to comply with the procedural requirements for notification to the applicant, and for a copy to be provided to the Secretary, does not affect the validity of the decision (s 430A(3)) which, in the present case, was a decision (taken to be made on 12 March 2012) to affirm the decision of the delegate to refuse a protection visa.

12    In the present case, the written statement prepared by the RRT was sent to the Secretary on 12 March 2012. It was posted on the same day to an address which was, at one time, the address of the first respondent. He gave that address to the RRT on 2 November 2011. However, on 2 February 2012 the first respondent notified the RRT of a change of address. The change was entered in the records of the RRT and, on 9 February 2012, the RRT wrote to the first respondent at the new address to invite him to appear at a hearing on 7 March 2012, which went ahead on that day.

13    Despite those matters, the RRT sent its written statement dated 12 March 2012, which informed the first respondent that it had affirmed the decision of the delegate to refuse him a protection visa, to his previous address and not to his correct address. The error went undetected until 23 May 2012 when the first respondent telephoned to inquire about his application for review. Subsequently, on 28 May 2012, a further letter was sent to the first respondent, giving him a copy of the written statement and informing him: ‘The tribunal’s review has now been completed.’

14    Between the date of the written statement and the date of effective notification to the first respondent, important changes were made to the Act. Those changes provided for additional grounds for protection visas, known as complementary protection grounds. The complementary protection grounds were available in respect of applications for protection visas which had not been “finally determined” by 24 March 2012.

15    Thus, as earlier indicated, the central question in the present case is whether the application for a protection visa made by the first respondent had been finally determined by 24 March 2012. If it had not been, the first respondent is entitled to further consideration of his application for a protection visa by the RRT to see if he is entitled to such a visa based on complementary protection grounds.

16    Broadly speaking, the competing contentions on the present appeal are, on the one hand, that the decision of the delegate was no longer subject to any form of review after 12 March 2012 (and the application for a protection visa was finally determined on that date) and, on the other hand, that the review function of the RRT was not complete until the RRT had notified the first respondent of its decision in accordance with s 430A of the Act – i.e. when it sent the letter dated 28 May 2012 (and the application for a protection visa was finally determined on 28 May 2012).

17    The appeal to this Court is from a judgment of the Federal Circuit Court of Australia (“the FCCA”). The first respondent applied to the FCCA for judicial review of the decision of the RRT on 12 June 2012, on the ground that the RRT had committed jurisdictional error. The issue which has attracted attention on the present appeal was not raised by the first respondent but counsel for the Minister very properly brought the question to the attention of the FCCA.

18    Before the FCCA, the question was examined by considering whether the RRT became functus officio when it sent a copy of its written statement to the Secretary, so that it had no power to reopen its decision to affirm the decision of the delegate or examine further grounds for the grant of a protection visa.

19    The primary judge who constituted the FCCA, and from whose judgment the present appeal has been brought, felt bound by a decision of a Full Court of this Court in Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 (“SZQOY”) to conclude that the RRT did not complete its “core function” of review until it notified its decision to both the first respondent and the Secretary and that the application for a protection visa was not finally determined before notification to the first respondent on 28 May 2012. As a result, the primary judge decided that the matter should be remitted to the RRT for further hearing and determination (SZRNY v Minister for Immigration & Anor [2013] FCCA 197).

20    In my respectful opinion, the observations in SZQOY upon which the primary judge relied do not dictate the outcome of the present case, which turns upon consideration of questions of statutory construction which did not arise for consideration in SZQOY. I take a different view from that of Griffiths and Mortimer JJ about that question of statutory construction. Before I explain why that is so, I propose to explain why I do not regard what was said in SZQOY as being determinative of the present case.

21    In SZQOY, the Full Court held that the RRT was not functus officio when a written record of decision was transmitted internally to its own Registry. The essence of the reasoning was that, at that point, the decision was not beyond the power of the RRT to revise, amend, recall or if necessary reverse (see Buchanan J at [23], Logan J at [34], [40] and Barker J at [55]-[58]).

22    My own judgment referred to, and adopted, the reasons of Spender J and Madgwick J in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533, who each referred to notification of a decision as a matter putting it beyond effective recall. However, in the context of the present case it is important to draw attention to two matters.

23    First, Spender J and Madgwick J did not have an identical approach to the question. Spender J referred (at [12]) to a decision being beyond recall once sent to “either the Minister or the applicant” (emphasis added). Madgwick J thought it necessary (see [103]) that a decision be “communicated to the applicant or irrevocable steps have been taken to have that done” (emphasis added).

24    In SZQOY, it was not necessary to examine further the question of whether communication at least to the applicant was necessary (Madgwick J in Semunigus), or whether communication to either the applicant or the Secretary was necessary (Spender J in Semunigus) before it could be said that a decision of the RRT was beyond its recall. My own reasoning in SZQOY fits most comfortably with the position taken by Spender J in Semunigus (and also by Merkel J in Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18 at [31], [38] and by Ryan J in Applicant in V346 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536 at [77], [79]). The statement by Madgwick J in Semunigus goes further, if it is to be understood as saying that a decision of the RRT may be recalled if it has not been communicated to an applicant, even though sent to the Secretary. It was not necessary in either Semunigus or SZQOY to determine that precise question.

25    Secondly, the underlying principle which Spender J, Madgwick J and I all applied is that expressed by Finn J at first instance in Semunigus (Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422) (at [19]):

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.

26    In SZQOY, Logan J went further in his explanation of the operation of the review function of the RRT and, in particular, gave consideration to when a review might be said to be complete. However, ultimately that analysis was directed also to the question of whether the review function was complete before a decision left the RRT registry.

27    Thus, Logan said (at [34]):

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. …

    (emphasis added)

and (at [40]):

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.

(emphasis added)

28    Although Logan J referred to the act of sending a decision to the applicant and to the Secretary, it is clear that his Honour was focussed on the distinction between the act of publication of the decision and a circumstance where the decision had not “been sent out” at all. His Honour was not concerned with questions of effective notification.

29    Similarly, Barker J said (at [57]):

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”. …

30    Barker J also was focussed on the distinction, which was material for SZQOY, between communication internally within the RRT and some step of overt publication beyond the RRT.

31    In the judgment under appeal, the primary judge invested the discussion in SZQOY with a broader significance than in my respectful view it should be given. Relying principally on the observations of Logan J and Barker J, and focussed on the notion of when the core function of review by the RRT is complete, the primary judge summarised the weight of opinion in SZQOY (at [132]) as being to the effect that ‘communication to the applicant [is] essential to completion of such core function’.

32    That understanding of the majority view in SZQOY then led the FCCA to conclude (at [133]):

It can only be said that a delegate’s decision is no longer subject to any form of review by the Tribunal if the Tribunal’s core function of review has been completed.

33    This last conclusion, although based on the discussion by Logan J (and the agreement of Barker J) in SZQOY, goes beyond what SZQOY actually decided. In my respectful view, the primary judge extended the analysis in SZQOY too far. SZQOY must be understood in the context of the factual situation being addressed. In that case no step had been taken to publish the decision of the RRT outside its own Registry. The central issue was, as I said before, whether communication of the decision by the member of the RRT to the Registry of the RRT put it beyond recall. It plainly did not.

34    I would accept in the present case that the RRT was functus officio in relation to the decision. Its decision had been put beyond recall. It had been put beyond recall both by its transmission to the Secretary and by being posted to the applicant’s previous address, from where it might perhaps have been forwarded to the applicant. On any view, the decision had been published in a way which indicated that it could not be revised, amended, recalled or reversed even if the applicant had not been directly or effectively notified.

35    At the same time, however, proper notification to the first respondent remained necessary if the RRT was to comply with its obligations under s 430A of the Act. In a particular case, therefore, it may be very important to make a distinction between the point at which a member of the RRT becomes functus officio in relation to a decision and the finalisation of other essential functions before a review is regarded as complete. The approach taken by the primary judge to the reasoning in SZQOY, in my respectful view, obscured that important distinction.

36    The doctrine of functus officio does not help in the present case to decide whether the decision of the delegate was, or was not, still subject to any form of review after its decision was published on 12 March 2012. The judgment in SZQOY is not determinative one way or the other of that question.

37    The Minister submitted that the Court on the present appeal should find that the decision of the Full Court in SZQOY was “plainly wrong”, presumably with a view to it being overruled, although such a finding was not necessary to the Minister’s argument. It is not necessary to express any view about this submission. The judgment in SZQOY was not the subject of any application for special leave to appeal to the High Court of Australia. The terms of the judgments in that case speak for themselves, although they must always be read with an eye to the issue actually presented for resolution in that case.

38    It must also be borne in mind that SZQOY did not address the meaning of s 5(9) of the Act, which is the central question in the present case. It was not relevant to do so.

39    Based upon the terms of s 5(9) of the Act, counsel for the first respondent argued that the decision of the delegate would no longer be subject to “any form of review under Part…7” only when the RRT had finally performed all aspects of its review function, including taking all necessary steps required by s 430A of the Act. I do not agree with this proposition, which seems to me to elevate form over substance.

40    In my opinion, once the decision of the RRT was despatched to the Secretary and (albeit incorrectly addressed) to the first respondent, the decision of the delegate was no longer subject to any form of review by the RRT. The position does not change because despatch to the first respondent was ineffective or because it did not conform to the direction in s 430A(1)(b) (i.e. to use a method in s 441A) or to the related direction in s 441A to post the decision to the last notified address. Although it remained necessary to comply with s 430A(1) using one of the methods specified in s 441A (by post or otherwise) that did not mean, in my view, that the decision of the delegate remained under any form of review until that was done. My view about that is strengthened by the operation of s 430A(3) and the fact that the decision itself (on 12 March 2012) must be taken to be valid.

41    If a valid and final decision affirming the decision of the delegate was made on 12 March 2012, it cannot in my respectful view be successfully maintained that the decision of the delegate remained nevertheless under some form of review. In my view, that position does not change even if the applicant was not effectively notified until 28 May 2012. It does not change even if it be correct to say that the review is not complete so far as it concerns the obligations of the member of the RRT.

42    I would uphold the appeal, set aside the judgment of the FCCA and order in lieu thereof that the application to that Court be dismissed. The Minister is entitled to his costs of the appeal, and of the proceedings in the FCCA.

Associate:

Dated:    11 September 2013

REASONS FOR JUDGMENT

Griffiths and Mortimer JJ

43    The issue is when the first respondent’s application for a protection visa was “finally determined” within the meaning of s 5(9)(a) of the Migration Act 1958 (Cth) (the Act). More particularly, for the purposes of that provision, did the Minister’s decision rejecting that application cease to be subject to review under Part 7 of the Act before the Refugee Review Tribunal (the Tribunal) had complied with s 430A(1) of the Act by notifying the visa applicant of its decision?

44    For the reasons which follow, we would dismiss the appeal and order the Minister to pay the costs of the first respondent (SZRNY).

Summary of background facts

45    The factual background against which these issues arise may be summarised as follows:

    SZRNY is a Pakistani national. After having been in Australia for approximately three weeks on a form of temporary business visa, on 4 March 2010 he applied for a Protection (Class XA) Visa (the visa application);

    on 16 June 2010, the Minister’s delegate refused the visa application under s 65(1)(b) of the Act;

    on 5 July 2010, SZRNY sought a merits review of the delegate’s decision in the Tribunal;

    on 12 March 2012, and following SZRNY’s successful challenge to an earlier Tribunal decision affirming the delegate’s decision, the Tribunal again affirmed the delegate’s decision and prepared a written statement pursuant to s 430(1) of the Act setting out inter alia its decision and reasons (the s 430(1) statement);

    by letter also dated 12 March 2012, the Tribunal gave the Secretary of the Department of Immigration and Citizenship (the Secretary) a copy of the s 430(1) statement pursuant to s 430A(2) of the Act and in accordance with the method set out in s 441B;

    by letter dated 28 May 2012, after having sent an earlier letter dated 12 March 2012 to the wrong address, the Tribunal for the first time notified SZRNY in accordance with s 441A(4) of the Act of its decision to affirm the delegate’s decision by giving him a copy of the s 430(1) statement pursuant to s 430A(1) of the Act;

    on 12 June 2012, SZRNY sought a judicial review of the Tribunal’s decision in the Federal Magistrates Court (now the Federal Circuit Court);

    on 11 July 2012, Barnes FM (as her Honour then was) granted an extension of time to commence the judicial review proceedings;

    the Minister raised an issue that had not been pleaded by SZRNY, namely whether the Tribunal had committed a jurisdictional error by failing to consider if SZRNY satisfied the complementary protection criterion in s 36(2)(aa) of the Act and/or by failing to invite him, pursuant to s 425, to appear before it to address that criterion (the circumstances in which this issue became relevant will be summarised shortly); and

    although the primary judge rejected all of SZRNY’s substantive arguments, her Honour held that, for the purposes of s 5(9)(a) of the Act, the Tribunal’s “core function” of review was not completed until 28 May 2012, i.e. when the Tribunal notified SZRNY of its decision by posting at that time the s 430(1) statement to his correct address.

46    The significance of determining whether or not SZRNY’s visa application had been finally determined as at 12 March 2012 – as opposed to 28 May 2012 – relates to the commencement date of various statutory provisions which were inserted by Schedule 1 to the Migration Amendment (Complementary Protection) Act 2011 (Cth) (the Complementary Protection Act). The relevant provisions commenced on 24 March 2012. By those amendments, s 36(2) of the Act was amended by adding the following matter to the list of criteria for the grant of a protection visa:

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;…

47    By reason of item 35 of Sch 1 to the Complementary Protection Act, that amendment to s 36(2) applies in relation to, relevantly, protection visa applications that have not been “finally determined” (within the meaning of s 5(9) of the Act), before 24 March 2012. Section 5(9)(a) of the Act relevantly provides that an application thereunder is finally determined when “a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part… 7”. The proper construction of that definition and the question whether the primary judge erred in finding that the circumstances here fell within it are matters which are central to the appeal.

Summary of primary judge’s reasons

48    The primary judge held that SZRNY’s application for review to the Tribunal was finally determined when either the Tribunal’s decision record “had been communicated to [SZRNY] or irrevocable steps had been taken to have that done in accordance with the notification provisions in the Act”. In circumstances where SZRNY was notified of the Tribunal’s decision on 28 May 2012, her Honour held that it was on that day that the Tribunal’s “core function” of review had been completed and only then was the Tribunal’s review completed.

49    Her Honour considered that her conclusions were supported by the various judgments of the Full Court in Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 (SZQOY). In particular, her Honour found that, whether considered as part of the Tribunal’s “core function” or as an indicator of when the Tribunal’s decision was made, each member of that Full Court viewed communication of the Tribunal’s decision to a review applicant as essential. Her Honour added that similar views had been expressed by both Spender and Madgwick JJ in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 at [12]-[21] and [103] respectively, and also by Finn J at first instance in that matter (Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19]-[20]). Those remarks were directed not to s 5(9) of the Act specifically, but rather to the doctrine of functus officio.

The appeal

50    The Minister argues that the primary judge erred in concluding that the Tribunal’s review of the delegate’s decision to refuse SZRNY’s visa application had not been finally determined as at 24 March 2012. The Minister contends that the Tribunal’s review was “finally determined” at least upon communication of the Tribunal’s decision to the Secretary on 12 March 2012. The Minister further contends that the primary judge misunderstood or misapplied the Full Court’s decision in SZQOY. The Minister says that the primary judge ought to have regarded SZQOY as requiring her to conclude that the Tribunal was functus officio when its decision was beyond recall or incapable of revision, which point was reached on 12 March 2012 when the Tribunal’s decision was communicated to the Secretary.

51    In the alternative and if the ratio of SZQOY is that there must be notification to the applicant, then the Minister submitted this Court should find that SZQOY is “plainly wrong.” The Minister submitted that a state of finality in the Tribunal’s decision making is reached when the Tribunal has prepared a written statement under s 430(1) and that decision has been “recorded” in writing (within the terms of ss 414A(1), 422A(2)(a) and 440A(5)).

52    On either of these bases, the Minister submits that the delegate’s decision was finally determined within the meaning of s 5(9) of the Act on or before 12 March 2012, with the consequence that the complementary protection criterion had no application to SZRNY.

53    The Minister’s main submissions are as follows:

1.    the critical question is whether SZRNY’s protection visa application was finally determined prior to 24 March 2012;

2.    an application is finally determined when a delegate has made a decision that is no longer subject to any form of review;

3.    where the delegate’s decision to refuse a visa is affirmed by the Tribunal under s 415, the decision is no longer subject to any form of review under Part 7;

4.    the Tribunal’s powers under s 415 are spent once those decision-making powers have been exercised;

5.    the powers have been exercised when a decision of the finality described by Finn J in Semunigus at [19]-[20] has been made;

6.    this is sometimes colloquially put as when the decision is “beyond recall”;

7.    absent any provisions to the contrary, a decision is beyond recall at least when it has been communicated by the decision-maker to another interested person. The communication, while not part of the decision-making process, precludes the changing of the decision;

8.    the Tribunal’s decision-making power was exercised (and beyond recall) no later than when the decision was sent to the Secretary;

9.    although it is not critical in this case, the current legislation expressly indicates that the delegate’s decision has been “reviewed” (s 440A(6)) no later than when the Tribunal has “recorded its decision under s 430” (s 440A(5)(b)); and

10.    s 440A necessarily imposes a constraint on changing decisions from a point even earlier than communication to the interested parties because it could not have been the Parliament’s intention that decisions could be reported to it as having been “reviewed” when in fact they were still subject to further change.

54    It is convenient to summarise SZRNY’s primary submissions when describing the key relevant statutory provisions, to which we now turn.

Key relevant provisions of the Act

55    For convenience, the full terms of s 5(9) of the Act are as follows:

For the purposes of this Act, an application under this Act is finally determined when either:

(a)    a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

(b)    a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

56    Part 5 of the Act deals with review of decisions by the Migration Review Tribunal and referrals by that Tribunal to the Administrative Appeals Tribunal. It has no direct relevance to the issues here. The parties were agreed that there was nothing in Part 5 which impacted upon the proper construction of s 5(9) in its application to Part 7.

57    Part 7 deals with review of protection visa decisions. The issues in the appeal arise in the context of Part 7. Accordingly, it is appropriate to focus on the relevant provisions in this Part insofar as they impact on the process of review.

58    Division 9 of Part 7 deals with the establishment and membership of the Tribunal. The Tribunal is established by s 457. Under s 458, its membership consists of a Principal Member and such number of Senior Members and other members as are appointed in accordance with the Act (noting also that under that provision a Deputy Principal Member may be appointed).

59    The Principal Member is the executive officer of the Tribunal and has responsibility for the overall operation and administration of the Tribunal, including allocating the work of the Tribunal among the members (s 460).

60    Division 10 of Part 7 deals with “officers” of the Tribunal. The officers of the Tribunal have such duties, powers and functions as are provided by the Act and the regulations, as well as such other duties and functions as the Principal Member directs.

61    The Tribunal is obliged by s 414 to review an “RRT-reviewable decision” when a valid application is made under s 412. “RRT-reviewable decisions” are defined in s 411, and principally concern decisions to grant or cancel protection visas. The obligation to review RRT-reviewable decisions has been described as the Tribunal’s “core function” (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [18] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

62    Section 414A prescribes the period within which the Tribunal must review an RRT-reviewable decision. The relevant period is 90 days. It is significant to note that that period ends not by reference to the concept used in s 5(9) of a decision no longer being subject to any form of review under Part 5 or 7, but rather by reference to 90 days from the day on which the Secretary gives the Registrar the documents referred to in s 418(2) (see further below).

63    Under s 415(1), the Tribunal is empowered, for the purposes of the review of an RRT-reviewable decision, to exercise all the powers and discretions conferred by the Act on the primary decision-maker. The Tribunal’s powers on a review, which include the power to affirm, vary, set aside, or remit the decision under review, are set out in s 415(2).

64    Under s 418, if an application for review is made to the Tribunal, the Registrar is obliged, as soon as practicable, to give the Secretary written notice of the making of the application. This notification then triggers the Secretary’s obligation under s 418(2) to give to the Registrar, within ten working days after such notification, the prescribed number of copies of a statement setting out the findings of fact made by the person who made the decision, referring to the evidence on which those findings were based and giving the reasons for the decision under review.

65    Section 420 of the Act requires the Tribunal, in carrying out its functions under the Act, to pursue the objective of providing “a mechanism of review” that is “fair, just, economical, informal and quick”.

66    Under s 421, for the purpose of a particular review, the Tribunal is constituted by a single member. As Logan J observed in SZQOY at [39], the single member is responsible for the exercise of the Tribunal’s powers and performance of its obligations, such as notifying the review applicant and the Secretary of its decision in relation to a particular review (albeit that some of the member’s responsibilities may be delegated to an officer of the Tribunal, such as notification of decisions). Barker J agreed with Logan J’s reasons generally (see SZQOY at [50]).

67    Sections 422 and 422A deal with reconstituting the Tribunal for the purposes of a particular review. The former provision imposes a duty to reconstitute the Tribunal in specified circumstances, while the latter provision confers a discretion to do so. SZRNY contends that these provisions support his construction and are inconsistent with that advanced by the Minister. Sub-section 422(1) provides that, if the member who constitutes the Tribunal for the purposes of a particular review stops being a member or, for any reason, is not available for the purpose of the review at the place where it is being conducted, “the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review”. The reference to “finishing the review” is significant.

68    Sub-section 422A(1) confers on the Principal Member a discretion to reconstitute the Tribunal for the purposes of a particular review, “if the Principal Member thinks the reconstitution is in the interests of achieving the efficient conduct of the review in accordance with the objectives set out in sub-section 420(1)”. Sub-section 422A(2) limits that discretion, so that it may not be exercised unless, inter alia, the Tribunal’s decision on the review has not been recorded in writing or given orally. SZRNY emphasises that the obligation to reconstitute the Tribunal under s 422(1) is not so limited. He contends that the limitation on the discretion imposed by s 422A(1) and its absence from s 422 make clear that a particular review is not finished once the Tribunal’s decision on the review has been recorded in writing or given orally. SZRNY further submits that the absence of a corresponding limitation on the obligation imposed by s 422(1) suggests that the obligation to reconstitute under that provision may arise even after the Tribunal’s decision on the review has been recorded in writing or given orally. That necessarily indicates that the review is not finished notwithstanding that a decision has been recorded in writing or given orally.

69    Sub-sections 422(2) and 422A(3) are also relevant. The former provides that, if the Tribunal is reconstituted under s 422(1), the new member constituting the Tribunal for the purposes of that review “is to continue to finish the review and may, for that purpose, have regard to any record of the proceeding of the review made by the Tribunal as previously constituted”. Sub-section 422A(3) is substantially to the same effect. In Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541, a Full Court constituted by Black CJ, Hill and Weinberg JJ said at [40] that the phrase “continue to finish” in s 422 “simply requires the reconstituted Tribunal to undertake what remains to be done in the review without interrupting the process, while picking up and carrying on the steps that have already been taken”. Again it is significant that all these provisions deal with completion of the “review” by the Tribunal, and are not expressly limited to recording a decision.

70    Division 4 of Part 7 contains provisions dealing with the conduct of a review, including the Tribunal’s power to seek information that it considers relevant (s 424), as well as its obligation to invite the applicant to a hearing (s 425). It is made clear in s 422B that this Division exhaustively states the requirements of the natural justice hearing rule in relation to the matters it deals with.

71    Division 5 of Part 7 is headed “Decisions of Refugee Review Tribunal” (emphasis in original). It contains important relevant provisions relating to the recording of the Tribunal’s decision on a review and notification of the Tribunal’s decision. While the Secretary does not normally appear in Tribunal proceedings, he or she has a right under s 423(2) to give the Registrar written argument concerning issues arising in relation to the decision under review. The Secretary also has various obligations and entitlements in respect of any review, some of which are outlined above and below.

72    For the purposes of the notification of decisions, a distinction is drawn in the Act between written and oral decisions of the Tribunal. Sub-section 430(1) obliges the Tribunal, where it makes a decision on a review, to prepare a “written statement” which sets out the decision of the Tribunal on the review, the reasons for the decision and the findings on any material questions of fact, and refers to the evidence or any other material on which the findings of fact were based. For written decisions, s 430(2) provides that a decision on a review is taken to have been made on the date of the written statement. This deeming provision fixes the time against which the obligation imposed by s 430A to notify the applicant and the Secretary of the Tribunal’s decision operates. It is important to note that, for the purpose of such notification, the relevant reference point is not the concept which is the subject of s 5(9), i.e. that the primary decision is no longer subject to any form of review under Part 7, but rather relates to the date on which the review decision is taken to have been made (which is the date of the written statement). A clear distinction is therefore drawn in statutory language between the making of a decision and its notification to the parties.

73    Section 430A is an important provision to the resolution of the appeal. It is headed: “Notifying parties of Tribunal’s decision (decision not given orally)” (emphasis in original). Under s 430A, the Tribunal is obliged to notify the applicant of a decision of a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under s 430(1) within 14 days after the day on which the decision is deemed to have been made. The notification has to be given by one of the methods specified in s 441A (see further below). Under s 430A(2), a copy of the written statement must also be “given to the Secretary within the same time frame and also by using one of the specified methods” (which methods, in the case of giving documents to the Secretary, are specified in s 441B). A failure to comply with the notification requirements imposed by s 430A is expressed not to affect the validity of the Tribunal’s decision (s 430A(3)). The Minister places particular reliance upon this provision in support of his construction. He says this provision indicates a decision can be valid even if not notified and that the scheme contemplates he can properly proceed to take relevant administrative steps to implement that decision even if the review applicant has not been notified in accordance with s 430A(1) (see further below).

74    Where the Tribunal delivers an oral decision, it is obliged by s 430D to “give” both the applicant and the Secretary a copy of the written statement prepared under s 430(1) within 14 days after the decision is made. Accordingly, even where the Tribunal gives an oral decision, it must prepare a written statement under s 430(1). It is to be noted, however, that under s 430D the applicant is deemed to be notified of the oral decision on the day on which the decision is made (and not when he or she is given a copy of the s 430(1) statement).

75    SZRNY further contends that the relevant significance of these provisions is that, even after a decision on a particular review has been given orally or recorded in writing, the member who constitutes the Tribunal for the purposes of the particular review continues to have “substantial obligations in relation to the review”. Those obligations include the requirement to prepare a written statement and to comply with the notification requirements. SZRNY contends that the Tribunal’s review is not finished merely at the point in time at which the Tribunal’s decision is recorded in writing or given orally. He says that this explains why, under s 422(1) of the Act, the Principal Member can reconstitute the Tribunal even after the Tribunal’s decision on a review has been recorded in writing or given orally. The review is not finished until certain further steps are taken, including notification. SZRNY says further that, under s 422(1), the Principal Member could reconstitute the Tribunal even if the member constituting the Tribunal delivers an oral decision on the review but then becomes ill or is otherwise unavailable to finish the review in terms of ensuring that the notification requirements are fulfilled.

76    The methods prescribed in s 441A by which the Tribunal may give documents to a person other than the Secretary may be summarised as follows (in the case of a person who is not a minor):

(a)    by specified persons handing the document to the recipient (s 441A(2));

(b)    handing the document to a person at the last residential or business address provided to the Tribunal by the recipient in connection with the review (s 441A(3));

(c)    dispatch by prepaid post or by other prepaid means to the last address for service or last residential or business address provided to the Tribunal by the recipient in connection with the review (s 441A(4)); or

(d)    transmission by fax, e-mail or other electronic means to the last relevant address provided to the Tribunal by the recipient in connection with the review (s 441A(5)).

77    As noted above, the need to construe s 5(9)(a) of the Act arises because of the fact that the 2012 amendments relating to complementary protection apply inter alia to an application for a protection visa that is not finally determined (within the meaning of s 5(9) of the Act) as at 24 March 2012. As will emerge below, that is not to say that this is the only context in which the concept of an application being “finally determined” arises under the Act.

78    The Minister’s preferred construction emphasises the importance of the need for certainty as to when a review is completed so that relevant administrative steps which arise after the completion of the review can validly be implemented by the executive government. For example, the Minister draws attention to the need for certainty in the operation of provisions such as s 198 of the Act, which deals with the removal from Australia of unlawful non-citizens. Under ss 198(2) and (6) of the Act, one of the pre-conditions to the obligation to remove an unlawful non-citizen from Australia arising is that the unlawful non-citizen’s application for a visa has been “finally determined”. The Minister emphasises the fact that these provisions impose mandatory obligations to remove unlawful non-citizens from Australia in specified circumstances and that, accordingly, there is a need for certainty as to when those obligations arise. He emphasises the uncertainty which would be created if departmental officers are not entitled to proceed on the basis of the fact that a decision on the review had been notified to the Secretary and instead are also obliged to make additional enquiries as to whether the statutory requirements concerning notification to the visa applicant have been carried out.

79    In response, SZRNY points out that if a visa application can be “finally determined” without the unlawful non-citizen who made the application being notified of it, the person might be removed from Australia without having an opportunity to commence judicial review proceedings, including under Part 8 of the Act in respect of the Tribunal’s decision and s 430 statement.

80    In support of his preferred construction, the Minister also points to several other provisions in the Act which, he says, highlight the need for certainty in knowing when a review under Part 7 has been completed. First, s 431 creates a discretion for the Principal Member to require the Registrar to publish any written statements prepared under s 430(1) if the Principal Member thinks that they are of “particular interest”.

81    Secondly, s 440A creates an obligation on the Principal Member to give periodic reports to the Minister about each application for a review of an RRT-reviewable decision during the specified reporting periods. The information that must be included in such a report includes the date on which each application was validly made under s 412 and the reasons why any such applications were not reviewed within the period prescribed in s 440A(2) (i.e. 90 days starting on the day on which the Secretary has given to the Registrar the documents required under s 418). The Minister is obliged to table a copy of any such report within the prescribed time in each House of the Parliament (s 440A(9)). The Minister says that, for the purpose of discharging his statutory functions under these provisions, he should be entitled to assume that a review has been completed when the Secretary is notified of the decision and irrespective of whether the requisite notification has been given to the review applicant. The Minister submits that it could hardly have been intended that decisions affected by these provisions dealing with the publication and reporting of decisions could be changed subsequently.

82    Thirdly, the Minister also points to s 336F(5), the effect of which is to create an exception to the prohibition otherwise imposed by s 336F(3) against disclosing what is described as “identifying information” to foreign countries. One of the elements of the exception is that the person to whom the identifying information relates is an applicant for a protection visa whose application “has been refused and finally determined”.

83    SZRNY draws attention to other provisions of the Act and the Migration Regulations 1994 (Cth) (the Regulations) which operate by reference to whether an application has been “finally determined”. Thus, for example, s 74(1) of the Act provides that, subject to s 74(2), an eligible non-citizen who is in immigration detention and whose application for a bridging visa has been refused by the Minister, may make a further application for a bridging visa. The broad effect of s 74(2)(b) is that, if the eligible non-citizen made an application for review of the Minister’s refusal of the earlier bridging visa application, the further bridging visa application cannot be made until 30 days after the earlier application is “finally determined”. SZRNY also relied upon the fact that the question of whether an earlier application has been “finally determined” also arises under various regulations (see, for example, 2.20(7), 2.20(8), 2.20(9), 2.20(10) and 2.20(12)). SZRNY contends that if a visa application could be “finally determined” without the applicant being notified of that fact, then that person would not be able to assess their compliance with criteria of these kinds.

Consideration

84    We consider that the delegate’s decision on SZRNY’s visa application was not finally determined by the Tribunal under Part 7 of the Act until such time as the Tribunal had notified both the applicant and the Secretary as ss 430A(1) and (2) require. Notification in this context means notification in accordance with the Act; namely ss 441A and 441B and not actual notification. Only when those requirements were fulfilled was the visa application “finally determined” within the meaning of s 5(9)(a) of the Act. Our reasons for preferring that construction of s 5(9)(a) are as follows.

85    First, the focus of the definition in s 5(9)(a) is on the notion of a primary decision either not, or no longer, being subject to any form of review under (relevantly) Part 7. The phrase “any form of review under Part… 7” is broadly expressed. In the particular circumstances here, that phrase invites attention to the question whether the notification of the Tribunal’s decision to the review applicant is an element of the content and scope of a Part 7 review. As a matter of general principle, it is difficult to understand why the taking of the prescribed steps concerning notification of the decision in respect of both the review applicant and the Secretary, as required by ss 430A(1) and (2) respectively, are not part of the content and scope of such a review. In the ordinary course, one would expect that the conduct of a review of a primary decision would not be complete until steps were taken to notify interested parties of the decision. Reviews of administrative decisions affecting people’s interests are not conducted solely for internal objectives pertaining to the reviewing entity. In most two-tiered administrative decision-making processes, telling those affected by a primary decision (and in particular the person who invoked the review jurisdiction in the first place) of the outcome of the review is an important element of the process. In our view the position is no different under the Act.

86    Generally, this would occur by some kind of handing down process in relation to the Tribunal’s orders and decision, and its reasons. Indeed, in this legislative scheme that used to be what occurred under what was then s 430B of the Act, as in force at the time of Merkel J’s decision in Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18.

87    A question often arises as to the effect that amendments to a legislative scheme are taken to have on the meaning of other provisions. However it was not submitted to us by the Minister, and we see no basis in the scheme to conclude, that the amendments to the notification provisions which were introduced to replace the ‘handing down’ provisions were intended to affect the construction and operation of s 5(9).

88    As the primary judge recognised, the importance to the Tribunal’s review of the notification requirements in s 430A of the Act was emphasised by each member of a Full Court in SZQOY (see Buchanan J at [23]; Logan J at [39]-[41] and Barker J at [57]). It is also to be noted that, while Barker J expressed his view on this topic in terms which were more qualified than those used by either Buchanan J or Logan J, each of their Honours approached the matter on the general basis that the notification requirements applied to both the review applicant and the Secretary. Although the question of the proper construction of s 5(9) of the Act did not arise in that case (rather, it focused on the related question of when the Tribunal becomes functus officio), the following observations of both Logan J and Barker J are especially apposite in highlighting the significance of the notification requirements to the Tribunal’s “core function” of review.

89    Logan J said at [40] and [41]:

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.

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) 109 CLR 243 (Batagol) of the process of assessment laid down in the Income Tax Assessment Act 1936 (Cth)… 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. (Emphasis added)

90    In our respectful view, Barker J (who, as noted above, agreed with Logan J’s reasons) was also correct to emphasise the importance of notification of the Tribunal’s decision and s 430(1) statement in facilitating a possible judicial review application under Part 8 of the Act. His Honour said 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. (Emphasis added)

91    We respectfully agree with those statements and consider they support a construction of s 5(9)(a) of the Act that regards the notification provisions in both ss 430A(1) and (2) as critical elements in a review under Part 7. To the extent that the Minister contends that those particular paragraphs in SZQOY are “plainly wrong”, we disagree. In our view they are plainly correct.

92    Furthermore, we cannot accept the Minister’s submission that the reasoning in SZQOY provides any support for the proposition that the Tribunal’s review is final when the s 430(1) statement has been communicated outside of the Tribunal to the Secretary alone. This is the view adopted by Buchanan J in the appeal and with which we respectfully disagree. There is nothing in the text, context or purpose of these provisions to suggest that the scheme identifies notification to the Secretary as fundamentally different from notification to an applicant. There is, for the reasons we have given above, much in the context and purpose of these provisions suggesting that the prescribed steps are to be taken to inform both of the decision before the review is completed, because each of them being told is an element of this review scheme.

93    We respectfully disagree with Buchanan J that the reasons of Merkel J in Singh and Ryan J in Applicant in V346 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536 support the proposition that external communication to the Secretary is the point at which the delegate’s decision is no longer subject to review. In Singh at [38], Merkel J said:

Thus, the majority view in Semunigus was that, under the Act as it stood prior to its amendment on 1 June 1999, the RRT was probably not functus officio until it had communicated its decision to the applicant. Accordingly, Semunigus does not support the Minister’s contention in the present case. Insofar as the decision is relevant to the Act in its present form, it supports the view that until the decision is handed down or communicated to the applicant or to the Department or the Minister the RRT is not functus officio and has power to recall the decision. (Emphasis added)

94    Although there is some use of the word “or” in the last part of this extract, we do not consider his Honour intended to attach the significance to it which is now sought to be attached. We consider his Honour’s reasons should be read in light of the first sentence and his acceptance of what he found Semunigus stood for.

95    In V346, Ryan J began the relevant part of his reasons (at [77]) thus:

In my view, the preponderance of opinions expressed in Semunigus and Singh that the Tribunal is not functus officio until its decision has been handed down or given orally or notified, as contemplated by, for example, ss 430A, 430B and 430D of the Act, accords with principle.

96    That is consistent with the approach we have adopted: namely, that s 5(9) should be construed as incorporating into the ‘review’ the performance of the notification requirements in ss 441A and 441B.

97    That is not to say that a visa application is not finally determined until all the provisions in Part 7 have been implemented. The relevant test under s 5(9)(a) for determining whether an application under the Act is finally determined is to identify the point in time when a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 7. In our view, provisions in Part 7 which deal with such matters as the Principal Member’s discretion to cause certain decisions of the Tribunal to be published (s 431) and the Principal Member’s obligation to give periodic reports to the Minister concerning the Tribunal’s decision-making record (s 440A) are not provisions which relate to the content or scope of the review notwithstanding that they appear in Part 7 of the Act. Those provisions do not relate to the performance of the function and obligation of the relevant Tribunal member to conduct a particular review (see s 421 of the Act). Rather, they relate to executive or administrative functions to be carried out by the Principal Member arising from the performance (or non-performance) of the Tribunal’s “core function” of review which is vested in the single member to whom a particular review is allocated. Accordingly, they are not of any particular assistance in the task of construing s 5(9)(a).

98    For completeness, it might also be noted that the legislative scheme does not require that an applicant for review actually receive notification of a decision on a review. Rather, the scheme imposes requirements on the Tribunal to take certain steps which are designed to maximise the possibility that the review applicant will be given a copy of the s 430(1) written statement for the decision on the review by following one of the methods specified in s 441A.

99    Secondly, we do not accept the Minister’s submission that s 430A(3) of the Act is inconsistent with this construction. As noted above, that provision makes plain that the failure to notify either the applicant for review or the Secretary in accordance with ss 430A(1) and (2) respectively does not affect the validity of the Tribunal’s decision on the review. The sub-section was presumably included in the Act with an eye to the statutory reconciliation process discussed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. Sub-section 430A(3) could be seen as a textual indication that non-compliance with the notification requirements imposed by s 430A(1) and (2) is not intended to affect the validity of the decision to which the notification requirements attach. It is unnecessary for us to express any concluded view on the effect of s 430A(3). If it has effect, s 430A(3) reaches only so far as a legal consequence which might or might not attach to failures to notify in accordance with ss 441A and 441B, or at all.

100    Neither the text nor context of s 430A(3) evince any intention to immunise the decision on review in any broader sense. Nor does it speak to when a review is or is not completed, which is the question posed by the terms of s 5(9).

101    Translated to the circumstances of this case, and taking into account the effect and operation of the relevant notification provisions, this means that if action had been taken by an officer purporting to act under s 198 of the Act to remove SZRNY from Australia upon notification on 12 March 2012 of the Tribunal’s decision on the review to the Secretary alone and without complying with the requirement to notify SZRNY in accordance with s 430A(1), SZRNY could have sought such relief to restrain such action despite the operation and effect of s 430A(3).

102    In our view, the construction we give to s 5(9)(a) is supported by other relevant provisions in the Act. In particular, as SZRNY points out, the existence of the limitation in s 422A(2) on the Principal Member’s discretion under s 422A(1) to reconstitute the Tribunal and its absence from the Principal Member’s duty to reconstitute the Tribunal under s 422, indicate that a particular review is not finished when the Tribunal’s decision on the review has been recorded in writing or delivered orally. If a particular review was completed at that point, there would be no need to reconstitute the Tribunal for the purpose of finishing the review. And the absence in s 422 of a comparable limitation to that which is imposed by s 422A(2) indicates that the obligation to reconstitute the Tribunal where a member who constitutes the Tribunal for the purposes of a particular review becomes unavailable, suggests that that obligation could arise either before or after the Tribunal’s decision on the review has been recorded in writing or given orally. The opportunity to reconstitute the Tribunal after the Tribunal’s decision on the review has been recorded in writing or given orally strongly suggests that the review function being carried out by the Tribunal is still ongoing at that stage. In that sense the primary decision remains “subject to” review.

103    Finally, in our view, no weight should attach to the Minister’s argument that the primary judge’s construction should be rejected because it creates unacceptable uncertainty and inconvenience for the bureaucracy in the administration of the Act. Those claims were not substantiated by reference to ss 198 and 440A. Both those provisions operate rationally with a construction of s 5(9) which fixes the end of the review after notification in accordance with the Act. In any event, it is difficult to see how general considerations of asserted administrative efficiency can influence the construction of s 5(9)(a) and related provisions, rather than an approach based on text, context, scope and purpose.

104    It seems to us that any practical problems created for the bureaucracy by s 5(9)(a) of the Act as properly construed are the product of a deliberate choice by the Parliament to use a particular reference point in that provision. In providing a definition in s 5(9) as to when an application is “finally determined” for the purposes of the Act, the Parliament could have selected other reference points. For example, the relevant reference point for determining when an application is finally determined could have been the day on which the Secretary gives the Registrar the documents referred to in s 418(2) (as is the case with s 414A) or, alternatively, the day on which the Tribunal’s decision is taken to have been made (as is the case with ss 430(2) and 430D). Instead, in s 5(9)(a), the Parliament chose to use the reference point as the point in time when the decision made in respect of an application is not, or is no longer, subject to any form of review under (relevantly) Part 7.

105    Moreover, in subsequently enacting the Complementary Protection Act and in determining the availability of the new complementary protection criterion, it was equally open to the Parliament to select as the relevant reference point the subject matter of provisions such as s 414A or ss 430(2)/430D. Instead, Parliament selected as the relevant reference point whether or not a protection visa application has been finally determined within the meaning of s 5(9).

106    The Minister conceded that if the transitional provisions in item 35 of Sch 1 of the Complementary Protection Act, read with s 5(9), did result in the criteria in s 36(2)(aa) applying to the Tribunal’s review of SZRNY’s application for a protection visa, then the Tribunal’s decision was affected by jurisdictional error. That concession was properly made. On the basis of the construction we adopt, the Tribunal was obliged to consider, but did not, whether SZRNY was owed protection obligations by Australia by reason of the matters set out in s 36(2)(aa).

107    Accordingly, we would dismiss the appeal and order the Minister to pay SZRNY’s costs of the appeal.

Associate:

Dated:    11 September 2013