Jayasinghe, Shantha Karunaratna v Minister for Immigration & Ethnic Affairs & Anor [1997] FCA 551

Catchwords CATCHWORDS

MIGRATION - powers of Refugee Review Tribunal - whether Tribunal has the power to reconsider or re-open a final decision - whether failure to re-open is a reviewable decision for the purposes of the Migration Act 1958

WORDS AND PHRASES - "Decision" - meaning of that word for the purposes of the Migration Act 1958

WORDS AND PHRASES - "functus officio"

ADMINISTRATIVE LAW - doctrine of functus officio - scope - whether doctrine can be characterised as a legal technicality

Migration Act 1958:

s 48A, s 48B, s 50, s 368(1), s 412, s 414(1)(2), s 415(1), s 416, s 420, s 420(1), s 420(2)(b), s 430(1), s 475(1)(b), s 476, s 476(1)(a), s 476(1)(e), s 478, s 481, s 485(1)

Pt 7, Pt 8

Migration Reform Act 1992:

s 166J (now s 457), s 166BD (now s 416)

Migration Legislation Amendment Act (No 6) 1995

Migration Legislation Amendment Act 1994 (Cth)

Migration Legislation Amendment Act 1989:

s 64E

Acts Interpretation Act 1901:

s 33(1)

Administrative Decisions (Judicial Review) Act 1977:

s 3(1), s 3(2), s 3(3), s 3(5)

Judiciary Act 1903

Federal Court Rules: O 20 r 1,

Migration (Review) Regulations 1989 (Cth)

Migration Reform Bill 1992

Corporations Law: s 837

Bennion, Statutory Interpretation, (2nd ed, 1992) 367

Convention Relating to the Status of Refugees 1951 as Amended

by the Protocol Relating to the Status of Refugees 1976

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Minister for Immigration and Multicultural Affairs v Ozmanian

(1996) 141 ALR 322

Ahmad v Minister for Immigration and Multicultural Affairs

(Sundberg J, unreported, 20 May 1997)

Dodds v Noldart (1955) Tas SR 58

Sloane v Minister for Immigration, Local Government and Ethnic

Affairs (1992) 37 FCR 429

R v Loumoli [1995] 2 NZLR 656

Minister for Immigration and Ethnic Affairs v Kurtovic

(1990) 21 FCR 193

Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1

Mahboob v Minister for Immigration and Ethnic Affairs

(1996) 64 FCR 398

R v Moodie; ex parte Mithen (1977) 17 ALR 219

Comptroller‑General of Customs v Kawasaki Motors Pty Ltd

(1991) 32 FCR 219

Hutchins v Commissioner of Taxation (1996) 65 FCR 269

Salerno v National Crime Authority (von Doussa, Drummond and

Mansfield JJ, 5 June 1997, unreported)

SHANTHA KARUNARATNA JAYASINGHE v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS & ANOR

No VG 526 of 1996

GOLDBERG J

MELBOURNE

25 JUNE 1997

OrdersFEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY )

GENERAL DIVISION ) No VG 526 of 1996

B E T W E E N:

SHANTHA KARUNARATNA JAYASINGHE

Applicant

and

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

and

REFUGEE REVIEW TRIBUNAL

(constituted by R ZALEWSKI)

Second Respondent

CORAM: GOLDBERG J

PLACE: MELBOURNE

DATE: 25 JUNE 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The amended application be dismissed.

2. The applicant pay the respondents their costs of the proceeding including reserved costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court rules

ReasonsFEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY )

GENERAL DIVISION ) No VG 526 of 1996

B E T W E E N:

SHANTHA KARUNARATNA JAYASINGHE

Applicant

and

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

and

REFUGEE REVIEW TRIBUNAL

(constituted by R ZALEWSKI)

Second Respondent

CORAM: GOLDBERG J

PLACE: MELBOURNE

DATE: 25 JUNE 1997

REASONS FOR JUDGMENT

Introduction

The application before the Court raises the unusual issue whether the Refugee Review Tribunal ("the Tribunal") can re‑open or reconsider its substantive decision on its review of an RRT‑reviewable decision after it has made and published its decision or whether, on the making of that decision, it is functus officio.

On 26 August 1996 the applicant filed an application for an order of review in respect of two decisions of the Tribunal. The first decision made by the Tribunal on 31 October 1995 was that the applicant was not entitled to a protection visa because he was not a person to whom Australia has protection
obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1976. The second decision was said to be the decision made by the Tribunal on 5 August 1996 refusing to reconsider the applicant's application which had been before the Tribunal and had been determined on 31 October 1995.

The application was expressed to be made under the Migration Act 1958 ("the Act'), the Administrative Decisions (Judicial Review) Act 1977 and s 39B of the Judiciary Act 1903. On 14 March 1997, pursuant to leave granted, the applicant filed an amended application for an order of review limited to being made under Pt 8 of the Act in which the applicant sought review of the two decisions of the Tribunal.

The respondents applied by motion on 1 April 1997 for the proceedings to be dismissed pursuant to O 20 r 1 of the Federal Court Rules on the ground that the amended application disclosed no reasonable cause of action. It was agreed by the parties that the return of the motion be treated as the final hearing of the application. It was accepted by the applicant that insofar as the original application filed on 26 August 1996 and the amended application filed on 14 March 1997 sought to review the decision of the Tribunal made on 31 October 1995 those applications were incompetent and untenable and the Court could not entertain the application as the original application had been lodged with the Court more than 28 days
after the applicant had been notified of the decision: see s 478(1)(b) of the Act.

The hearing of the application therefore proceeded only in relation to what was said to be a decision of the Tribunal on 5 August 1996 whereby the Tribunal said, in substance, that it had no power to reconsider or re‑open the application before it as it had finalised its decision and was functus officio.

Background to application before the Tribunal

The applicant arrived in Australia on 17 April 1990 and was granted a temporary residence entry permit as a dependent of his wife. The permit was valid to August 1996. He lodged an application for refugee status which included his wife and two children with the Department of Immigration and Ethnic Affairs on 2 December 1993. He also made an application for a domestic protection (temporary) permit. By reason of the relevant provisions of the Migration Reform Act 1992, which came into operation on 1 September 1994, the applicant's applications were deemed to be an application for a protection visa. A delegate of the Minister for Immigration and Ethnic Affairs ("the Minister") determined that the applicant was not a refugee and refused the application for a protection visa on 8 March 1995. An application for review of that decision was lodged with the Tribunal on 16 March 1995. The Tribunal held a hearing on 7 August 1995 at which the applicant and his wife gave evidence.

The applicant, who is Sinhalese, lived in Sri Lanka all his life until his departure in April 1990. He had been involved in the building and construction industry and was able to obtain explosives which he supplied to quarry operators. In October 1988 members of the Janatha Vimukthi Peramuna ("JVP") demanded that he supply them with explosives, which he did. Thereafter he was pressured into becoming a member of the JVP. Since 1989 security forces and other persons had gone to the applicant's parents' home and his wife's home looking for him but he had never been detained or questioned by the security forces. The applicant believed the army was looking for him and he left Sri Lanka in April 1990. He returned in December 1991 to visit his sick father and left in January 1992. The applicant believed that people were looking for him because of his membership of, and former association with, the JVP.

At the hearing before the Tribunal the applicant tendered documentation in relation to the activities of the JVP and visits made to his home by persons interested in him. He submitted a certificate from the Sri Lanka Red Cross Society in Colombo which was dated 4 January 1994 and was in the following terms:

"TO WHOM IT MAY CONCERN

It was brought to our notice that unidentified, armed personnel were regularly visiting the residence of Mr D K Jayasinghe (305 Kotalawala, Kaduwela) in searching for his son S D K Jayasinghe, whom we believe to be presently in Australia. The father and the other family members were threatned to produce the said S D K Jayasinghe. The allegations made against him was giving support to the Janatha Vimukthi Peramuna, a banned political
party in Sri Lanka, by suppling them with dangerous explosives.

Our organization made discreet inquiries and found out that the visits of the armed personnel happpened to be true. These visits were made during the year 1990 and at that time we did everything we could do to console the family members of the said Jayasinghe.

By 1991 these visits subsided but it was brought to our notice that again they have started visiting them from January 1992. After making inquiries this was also found to be true.

Only help we could offer was consoling the family members of Mr Jayasinghe. An official complaint could not be satisfactoraly persevered since the armed personnel were not identified and thousands of this type of things were happening everywhere in the country making our resourses inadequate to inquire into every complaint.

We hereby certify that a threat to the life of Mr S D K Jayasinghe existed during the past years.

This certificate is issued on the request of Mr D K Jayasinghe, the father of Mr S D K Jayasinghe."

The certificate was set out on the letterhead of the National Headquarters of the Sri Lanka Red Cross Society and it was signed by HMN Kumara Perepa, secretary Kaduwela Division Sri Lanka Red Cross Society.

There was evidence before the Tribunal that persons with JVP connections might face arrest. The Tribunal found that the JVP at the time of the hearing before it did not constitute a serious threat to the security of Sri Lanka and that the authorities' attitude to the JVP had declined in severity. It concluded that there was no objective evidence to indicate that the Sri Lankan authorities regarded the applicant to be a person with links to the JVP and did not accept as plausible
the applicant's statement that he was still being pursued as a member of the JVP.

The Tribunal sought advice from the National Headquarters of the Red Cross in Colombo about its policy in relation to the issue of certificates of the type tendered. The following reply was received on 26 October 1996 from the secretary‑general at the Sri Lankan National Headquarters:

"Under normal circumstances we do not issue letters of this nature.

We issue letters only on production of Documents authenticated by a responsible officer such as the Government Agent etc., and only on a written request.

However we are investigating on the veracity of this letter and no sooner we complete our findings shall revert. We shall be pleased to receive a copy of the certificate with the names and the signatory for us to expedite the Inquiry."

In a telephone conversation with an officer of the Tribunal's Research Desk the Tribunal was told that the Red Cross Society only issued certificates of this nature at the request of a foreign government and never at the request of an individual and that the secretary‑general doubted the authenticity of the certificate because it was signed by the secretary of a division and divisions never use the letterhead of National Headquarters. The Tribunal made the following finding:

"Based on this information I find that the certificate is not genuine and give it no weight."

In conclusion, and in summary, the Tribunal found that the evidence did not demonstrate that the applicant faced more than a remote chance of being arrested at the time of the decision for his activities in 1988 and 1989. In particular the Tribunal did not accept that the applicant was being sought by individuals or groups, other than the security forces, for his political activities.

The "decision" of the Tribunal not to reconsider the

application

The Tribunal handed down its decision on 31 October 1995. On 14 November 1995 the Tribunal received a further response by facsimile transmission from the Sri Lankan Red Cross in the following terms:

"DEAR SIR

ANSWER FOR YOUR QUESTION NO 1 IS THAT WE DO NOT ISSUE SUCH CERTIFICATES NORMALLY. THE ANSWER TO QUESTION NO 2 IS ALSO 'NO'. BUT UNDER VERY SPECIAL CIRCUMSTANCES WE ISSUE SUCH LETTERS.

NOTE:

WE CAREFULLY CHECKED OUR FILES AND FOUND A COPY OF THE DOCUMENT IN QUESTION (DELAY IN REPLYING WAS DUE TO THE FACT THAT WE HAD TO CHECK OLD FILES WHICH ARE NOW IN STORAGE). THE SAID DOCUMENT WAS SIGNED BY A RESPONSIBLE OFFICER OF OUR SOCIETY AND WE CAN VOUCH FOR ITS AUTHENTICITY. BUT PLEASE NOTE THAT WE CANNOT CONFIRM ITS CONTENTS SINCE THE OFFICER WHO MADE THE INVESTIGATION AND SIGNED THE DOCUMENT IS OUT OF THE COUNTRY AT PRESENT.

SUCH DOCUMENTS ARE ISSUED ON VERY RARE OCCASIONS, AND IF AND ONLY IF THE FACTS ARE FOUND TO BE TRUE AND IF THE REQUEST IS MADE BY A RESPONSIBLE CITIZEN OF GOOD STANDING AND SPECIALLY IF THE CONTENTS DO NOT INTERFERE WITH THE POLITICAL OR DEFENCE SYSTEM OF THE COUNTRY. WE ALSO DO NOT COMMIT OURSELVES IN SUCH DOCUMENTS. THE MOST WE COULD DO IS TO ISSUE SUCH A DOCUMENT TO CONSOLE PEOPLE WITH SUCH PROBLEMS.

YOURS SINCERELY,

C. DAYALADEWA

DIRECTOR (OPERATIONS)"

Question 1 had asked whether the Red Cross had issued the certificate. Question 2 had asked whether, if they had issued the certificate, they issued certificates for everyone who requested a certificate, or if they had not issued the certificate, in what circumstances did they issue such certificates.

On 20 November 1995 the Tribunal wrote to the applicant in the following terms:

"The Presiding Member has asked me to send you a copy of a facsimile message recently received from the Sri Lanka Red Cross Society dated 14 November 1995.

As you will see the message states that the certificate you tendered to the Tribunal in relation to your application for review is authentic. This message contrasts with the information previously provided to the Tribunal by the Sri Lankan Red Cross, as discussed in the Presiding Member's decision.

You may wish to consider obtaining legal advice in relation to your rights of appeal."

The letter was signed on behalf of the Deputy Registrar, Melbourne Registry.

At that stage no steps were taken by the applicant in response to the letter received from the Tribunal; in particular no application was made to the Court to review the decision of 31 October 1995.

On 22 July 1996 the applicant's solicitors wrote to the Tribunal, referred to the Tribunal's letter of 20 November 1995 and the facsimile from the Sri Lanka Red Cross dated
14 November 1995 and requested that the matter be reconsidered and that they be notified of a date for an oral hearing in the event that a favourable result on the papers was not made. On 5 August 1996 the Tribunal wrote to the applicant's solicitors stating, inter alia, that:

"Section 414 of the Migration Act 1958 refers to the Tribunal's duty to review decisions. Those decisions must be 'RRT-reviewable'. The definition of 'RRT‑reviewable' decisions is contained in ss 411(1) and s 411(2). As you will see those sub‑sections do not include decisions which have been finalised by the Tribunal.

... in having finalised its decision the Tribunal is functus officio and does not have the power to reconsider Mr Jayasinghe's case."

Was there a judicially‑reviewable decision on 5 August 1996?

Section 475(1) of the Act provides:

"(1)Subject to subsection (2), the following decisions are judicially‑reviewable decisions:

(a) decisions of the Immigration Review Tribunal;

(b) decisions of the Refugee Review Tribunal;

Section 414 of the Act provides:

"(1)Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision, the Tribunal must review the decision.

(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3)."

Section 415 sets out the powers of the Tribunal and the range of orders it may make in relation to its review of an RRT‑reviewable decision. It is implicit in that section that the substantive or final order to be made by the Tribunal is to be described as a "decision" (see, for example, sub‑par (2)(d) and sub‑par (3) and s 430(1)). However, the expression "decisions of the Refugee Review Tribunal" in s 475(1)(b) however is not circumscribed or limited by reference to any such substantive or final decision. Section 430(1) requires the Tribunal to prepare a written statement when it "makes its decision on a review", but s 475(1)(b) does not limit or restrict the judicially‑reviewable decisions of the Tribunal to its "decision on a review".

Mr Niall, who appeared for the applicant submitted that the meaning of "decision" in s 475(1) of the Act was wider than the definition of "decision" contained in the Administrative Decisions (Judicial Review) Act 1997.

It was submitted by Mr Downing, who appeared for the respondent, that identifying what the Tribunal did on 5 August 1996 as a "decision" thereby rendering it "a judicially‑reviewable decision" subject to review by the Federal Court was a backdoor attempt to avoid the stringent requirements of Pt 8 of the Act. It was correctly pointed out by Mr Downing that there was a strict time limit within which an application to the Federal Court to review a judicially‑reviewable decision was to be lodged: s 478(1)(b). He submitted that in the circumstances of this case the context of Pt 7 and Pt 8 of the Act did not lead to a definition of "decision" which would allow the re‑opening or reconsideration of a determination or decision by the Tribunal on the substantive issue before it, namely the Tribunal's decision on a review for the purposes of s 430 of the Act.

Mr Downing submitted that the 'decisions" referred to in s 475(1)(b) were the final operative decisions for the purposes of s 430 of the Act. In support of this submission he relied upon the reasoning of Sundberg J in Ahmad v Minister for Immigration and Multicultural Affairs (unreported, 20 May 1997) where, in considering the ground of review under s 476(1)(a), His Honour observed that "s 430 deals with steps the Tribunal must take after it makes a decision ...". However, His Honour was not faced with the issue as to the nature of a "decision" for the purposes of s 475(1)(b) and it is to be observed that s 430 refers to a "decision on a review" and not to a "decision" generally.

Mr Downing also relied on Dodds v Noldart (1955) Tas SR 58 but that case was concerned with the dichotomy between final and interlocutory orders for the purpose of a right of appeal. The principles that underlie that dichotomy, and the manner in which one determines whether a judgment, determination or decision is final or interlocutory, are of no assistance in resolving the present issue.

The structure of s 475(1) suggests that the decisions of the Tribunal which are to be "judicially‑reviewable decisions" are decisions made under the Act, that is to say, decisions for which provision is made by or under the Act. The use of the expression "other" in sub‑para (c) suggests that the decisions which precede sub‑para (c), namely in sub‑paras (a) and (b) are also decisions made under the Act or the regulations relating to visas. If this interpretation had not been intended one would have expected to find sub‑para (c) referring not to "other decisions" but rather to "decisions". Although s 430(1) refers to the making of the Tribunal's "decision on a review" (an expression also found in s 368(1) in relation to the Immigration Review Tribunal), I regard that expression as doing no more than referring to the substance of the decision which is to be reduced into writing in a particular way and communicated to relevant parties.

Some guidance can be obtained from the High Court's consideration of the nature of a "decision of an administrative character" under the Administrative Decisions (Judicial Review) Act 1977 in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Mason CJ (with whom Brennan J agreed as did Deane J in a concurring judgment) observed that the word "decision" had a variety of potential meanings (335):

"As Deane J noted in Director-General of Social Services v Chaney (1980) 47 FLR 80, 100, in the context of judicial or administrative proceedings it ordinarily refers to an announced or published ruling or adjudication. In such a context, the word may signify a determination of any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue. Even if it has that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly
again, a determination which effectively disposes of the matter in hand ..."

His Honour said (at 337) that in the context of s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 a reviewable decision was:

"one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration."

In that case the relevant expression was "decision of an administrative character made, or proposed to be made, or required to be made ... under an enactment" and an expanded meaning to "the making of a decision" was given by s 3(2) and (3) of the Administrative Decisions (Judicial Review) Act 1977. It was these considerations, together with the fact that s 3(5) says that a reference in the Act to conduct engaged in for the purpose of making a decision included a reference to the doing of an act or thing preparatory to the making of a decision, which led the majority of the Court to the conclusion that a reviewable decision was one which was final in the sense of resolving the issue of fact falling for consideration.

Mason CJ reached his conclusion on the basis not only of textual considerations but also by reference to relevant policy arguments. He observed at 337:

"If 'decision' were to embrace procedural determinations, then there would be little scope for review of 'conduct' a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision‑maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the 'conduct' of the hearing in refusing an adjournment that is the subject of review."

There are separate provisions in the Administrative Decisions (Judicial Review) Act 1977 which enable the review of "conduct" as distinct from the review of a "decision of an administrative character". However, the same provisions are not found in Pt 8 of the Act. Under Pt 8 only "decisions" of the relevant tribunals are reviewable and the Full Court of the Federal Court has held that "conduct" as distinct from "decisions" is not reviewable under Pt 8: Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322.

The question thus arises as to whether there is reason to limit the scope of the expression "decisions of the Refugee Review Tribunal" in the same way as the High Court did in Australian Broadcasting Tribunal v Bond (supra). One finds the powers of the Federal Court on an application for review of a judicially‑reviewable decision in s 481, but there is nothing in that section which suggests a limitation on the content of "decisions of the Refugee Review Tribunal" which would exclude decisions of the nature of that under consideration.

Nevertheless the manner in which Pt 8 of the Act came to be included in the Act, and the legislative policy which underlies it, suggests quite strongly that the only decisions of the Tribunal which were to be judicially‑reviewable were those decisions which dealt with and determined substantive applications by applicants in a final way, and not decisions which were procedural in nature.

The creation of the Tribunal occurred as a result of the Migration Reform Act 1992 which introduced a considerable number of significant amendments and additions to the Act: Mahboob v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 398; Ozmanian (supra, 335).

Part 8 of the Act sets out a comprehensive set of provisions relating to the procedures to be followed for the review by the court of judicially‑reviewable decisions and to the grounds of that review. In Ozmanian (supra) Sackville J (with whom Jenkinson and Kiefel JJ agreed) said that his view that the statutory scheme did not allow the review of conduct leading up to a decision was confirmed by the explanatory memorandum which accompanied the Migration Reform Bill 1992. In particular he noted, inter alia:

"24 The Reform Bill contains an integrated package of amendments which will codify decision‑making processes relating to the grant and cancellation of visas, greatly expand the availability of determinative merits review, and ensure that judicial review of migration decisions is available only on grounds which take into account the special nature of decisions on the status of non‑citizens. The package of amendments addresses concerns about the making of decisions under the Principal Act. These concerns relate, on the one hand, to the fairness of procedures currently followed by decision‑makers and, on the other hand, to the potential for abuse of those procedures by non‑citizens seeking to delay departure from Australia."

...

45 The specific codified procedures in the Reform Bill, and those to be set out in the Migration Regulations, replace the current uncertain rules with regard to natural justice and statutory criteria for decision‑making will clarify the matters which must be considered in making a decision. An applicant will be able to appeal to the Federal Court if the codified procedures and criteria have not been followed by decision‑makers, but a Court appeal will only be permitted where the appellant has first pursued all merits review rights."

The references to "determinative merits review" and "judicial review of migration decisions" in para 24 and "merits review rights" in para 45 are, in my view significant. They show that access to the Federal Court was intended to be limited to that point at which there has been a determination by a Tribunal of the substantive issue involving the applicant.

It is consistent with the reasoning in Ozmanian that the only "decisions" to be judicially‑reviewable under Pt 8 of the Act are those which resolve the substantive issue before the Tribunal and are specifically provided for in the Act. In Ozmanian (supra) the Full Court held that the jurisdiction given to the Court in s 485(1) of the Act did not include reviewing conduct leading to a judicially‑reviewable decision. As Sackville J observed (334):

"The Migration Act itself does not refer to conduct engaged in for the purpose of making a decision. Nor does it define the word 'decision'. The Act therefore does not, in terms, distinguish between a decision and conduct leading up to that decision."

If one then construes "decision" in s 475(1)(a) and (b) as referring to decisions for which provision is made by or under the Act, attention is then to be focussed on whether the decision is expressly or impliedly required by the Act. The fact that a particular decision may be within the power of the Tribunal to make does not, of itself, result in that decision being one for which provision is made by or under the Act. This issue was considered by the Full Court in Hutchins v Commissioner of Taxation (1996) 65 FCR 269. Black CJ said (at 273):

"A decision that is neither expressly authorised or required, nor impliedly required, by an enactment but which has as its sole source of authority general powers of administration conferred by an enactment is unlikely to be one that is given force or effect by an enactment or by a principle of law applicable to the enactment."

Spender J, who agreed with Black CJ that the decision before the Court was not one made under an enactment, said (278):

"The fact that a decision is made within power, ie is not ultra vires a particular statute, does not in my opinion necessarily mean that the decision is a decision made under that enactment. There is no identity between decisions made within power and decisions made under an enactment."

This distinction between decisions authorised in a general way by an enactment and decisions expressly or impliedly required by an enactment or given force or effect to by an enactment was regarded by the Full Court in Salerno v National Crime Authority (von Doussa, Drummond and Mansfield JJ, 5 June 1997, unreported) as giving proper effect to balancing the two competing policy considerations of giving people aggrieved by administrative decision‑making processes an effective means of redress and of avoiding the risk of impairing the efficient administration of government. The Full Court said (20):

"If a general authorisation in a statute for a decision by an organisation set up under that legislation is sufficient to make it a decision under the statute, and thus open to judicial review, every intra vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision will be examinable by the Court. The potential for massive disruption of the organisation's activities that would be the consequence of such a conclusion is manifest".

Although these observations were made in the context of the particular definition and context of "decision" in the Administrative Decisions (Judicial Review) Act 1977 I consider they are relevant and applicable in identifying the connotation and denotation of "decision" in s 475(1) of the Act.

Section 420 requires the Tribunal to pursue an objective of providing a mechanism of review that is "fair, just, economical, informal and quick". These objectives involve, in my view, a balancing exercise by the Tribunal in the sense that the requirement to be fair and just is placed in a temporal framework which is not open‑ended, that is to say the review has to be "quick". It would militate against an objective that the Tribunal reach a substantive decision on the merits in accordance with this objective if intermediate or procedural decisions on the way to that substantive determination could be the subject of review by the Court. As with Australian Broadcasting Tribunal v Bond (supra, 336 ‑ 337) there are competing considerations. The observation of Mason CJ in Australian Broadcasting Tribunal v Bond (337) in relation to the Administrative Decisions (Judicial Review) Act 1977 is apposite to the Act in its present form, and in a sense more so:

"To interpret 'decision' in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision‑making and set at risk the efficiency of the administrative process".

If "decision" in s 475(1)(b) included interlocutory procedural decisions or determinations of the Tribunal other than those relating to the final disposition of the substantive application before it the mechanism of the Tribunal would no longer have the capacity to be "economical" or "quick".

It was submitted in the alternative by Mr Niall that in any event what the Tribunal did on 5 August 1996 was a "decision" in accordance with the principles identified in Australian Broadcasting Tribunal v Bond (supra). He said that what the Tribunal did was final and operative or determinative in a practical sense of the substantive rights of the applicant as it foreclosed forever any opportunity to have the Tribunal reconsider or re‑open the matter before it in the light of the subsequent material received from the Sri Lanka Red Cross Society. However if judicially‑reviewable decisions are restricted to those making a final determination on the application before the Tribunal there is no scope for a decision not to reconsider that final determination being
included within the expression. In any event that submission depends on the Tribunal having the power to reconsider or re‑open a matter before it. For reasons to which I shall refer I am of the opinion that the Tribunal has no such power so that even if the term "decision" was to be given an extended meaning in s 475(1)(b) it would not include a decision not to reconsider or re‑open a final decision on the substantive application before it.

I am therefore of the opinion that what the Tribunal did on 5 August 1995 was not, and cannot be described as, a "decision" in the sense in which that term is used in s 475(1)(b) of the Act.

Does the Tribunal have the power to reconsider or re‑open a

decision on a review determining the substantive application?

Even if a "decision" for the purposes of s 475(1)(b) of the Act does bear a broader meaning than simply the final determination of the substantive application before it I do not consider that the Tribunal has the power to reconsider or re‑open its final decision on a review determining the substantive application.

The existence of such a power is essentially a matter of statutory construction. No such power is referred to expressly in the Act and if such power exists it must be found by implication in the statutory scheme. Mr Niall placed significance on s 420(2) which requires the Tribunal, inter alia, not to be bound by technicalities and to act according
to substantial justice and the merits of the case. He submitted that these obligations were consistent with an implied power to re‑open a matter and were not inconsistent with such a power. He also sought to draw support from s 414 and s 416 from which he extracted a principle that the Tribunal should resolve issues without the necessity of repeat applications. I do not consider that these sections by themselves enable an implication of the power to re‑open a substantive decision and indeed, for reasons to which I shall refer, s 416 points against such an implication.

Mr Niall submitted that the doctrine of functus officio was a legal technicality primarily directed to the exercise of judicial power which should yield to the requirement that the Tribunal provide a mechanism of review that is fair, just, economical and quick: s 420(1). I do not consider it a correct characterisation of the doctrine of functus officio to call it a "legal technicality". Rather it is a description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function. The effect of the application of the doctrine is that once the statutory function is performed there is no further function or act for the person authorised under the statute to perform: R v Moodie; ex parte Mithen (1977) 17 ALR 219, 225; Comptroller‑General of Customs v Kawasaki Motors Pty Ltd (1991) 32 FCR 219, 225.

This consequence was recognised by Mr Downing who submitted that once a decision on the merits was made by the Tribunal its power was spent and that any further decision to re‑open that decision on the merits was ultra vires. He relied upon the judgment of Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211 where His Honour said:

"The result is that when the decision‑maker attempts to resile from his earlier decision, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring a particular power in issue".

The issue whether there was a power in the Act to reconsider or re‑open a decision was addressed by French J in Sloane v Minister for Immigration Local, Government and Ethnic Affairs (1992) 37 FCR 429. His Honour concluded that as the Act stood in August 1991 it did not include by implication a power in the officer of the Department of Immigration, Local Government and Ethnic Affairs who refused the grant of a December 1989 (Temporary) Entry Permit to reconsider that decision once it had been formally made and notified to the applicant.

The legislation which French J had to consider was in a different form to its current form. The applicant had been arrested in June 1991 under the provisions of the Act as he had been illegally in Australia since 1982. He applied for a temporary entry permit under concessional regulations applicable to persons illegally in Australia before 18 December 1989. His application was refused by an officer on behalf of the State Director of the Department of Immigration, Local Government and Ethnic Affairs. A record of the decision was signed by that officer and sent to the applicant. The applicant applied to the Immigration Review Tribunal for a review of the refusal of his application but that application was incompetent because under the Migration (Review) Regulations 1989 (Cth) the Tribunal had no power to review the decision if the applicant had been arrested under the Act after December 1990 and before he lodged his application. Thus no issue arose as to the power of the Immigration Review Tribunal. In the proceeding before French J the decision‑maker had been asked to review his decision in the light of two subsequent medical reports. He had concluded that he did not have the power to reconsider his decision to refuse the application for the temporary entry permit and could not vacate his decision. The proceeding before French J sought an order of review of the decision refusing the application for the grant of the permit and the decision refusing to reconsider that decision.

French J observed that whether reconsideration of a statutory decision might itself be a course contemplated or authorised by the statute was a question of statutory construction which involved conflicting policy considerations. His Honour identified the policy considerations against the implication of a power to reconsider a statutory decision in the following passage (443):

"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 or the constitutional jurisdiction conferred on the High Court by s 75(v) of the Constitution and in its statutory form, on this Court by s 39B of the Judiciary Act 1903 (Cth). It would be hard to resist the proposition that a refusal to reconsider an earlier decision has the character of a final or operative decision in the extended sense contemplated by the High Court in Australian Broadcasting Tribunal v Bond. And if authorised by implication from the grant of primary decision‑making power, the refusal to reconsider in such a case would seem to answer the description of a decision made 'under an enactment'. A decision is made under an enactment if it is made 'insurance of' or 'under the authority of' the Act or ordinance or instrument concerned".

His Honour then noted the competing policy considerations in favour of the implication of the power to reconsider a statutory decision in these terms (443):

"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 angelical 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."

His Honour then identified the manner in which a court should approach the question of whether an implication should be found in a statute (443):

"The general question whether an implication should be found in the express words of a statute has been said to depend upon whether it is proper, having regard to accepted guides to construction, to find the implication and not on whether the implication is 'necessary' or 'obvious': see F A R Bennion, Statutory Interpretation (1984) p 245. While implication can often be justified by necessity, it should not be limited by that condition. The question whether some power, right or duty is to be implied into a statute will depend upon the construction of the provisions under consideration having regard to their purpose and context and other traces of the convenient phantom of legislative intention. Where a statute confers a power there is ample support for the proposition that the donee of the grant will enjoy the rights and powers necessary to the exercise of the primary grant. The so called 'inherent jurisdiction' or 'implied incidental power' of a statutory court derives from that general principle: see Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623".

He concluded that it would not be proper to imply a power to reconsider a decision by the Tribunal (444):

"While it may be accepted that a power to reconsider a decision made in the exercise of a statutory discretion will have the advantage of convenience, it cannot always claim the virtue of necessity. And in the context of the Migration Act as it presently stands with specific provisions for review of decisions and the making of regulations relating thereto, I do not consider, in the absence of clear words, that it would be proper to imply such a power."

Subsequent to that decision the Migration Reform Act 1992 was enacted and this brought into existence a significantly different procedure for the review of administrative decisions on applications for visas. In particular the Refugee Review Tribunal was established: s 166J (now s 457). Section 166BD (now s 416) provided:

"If a non‑citizen who has made:

(a) an application for review of an RRT‑reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

(b) applications for reviews of RRT‑reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;

makes a further application for review of an RRT‑reviewable decision, the Tribunal in considering the further application:

(d) may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information."

Section 26R (now s 50) provided:

"If a non‑citizen who has made:

(a) an application for a protection visa that has been refused and finally determined; or

(b) applications for protection visas that have been refused and finally determined;

makes a further application for a protection visa, the Minister, in considering the further application:

(d) may have regard to, and take to be correct, any decision that the Minister made about or because of that information."

Paragraphs (a) and (b) of that section were amended by the Migration Legislation Amendment Act 1994 (Cth). The section now provides:

"If a non‑citizen who has made:

(a) an application for a protection visa where the grant of the visa has been refused and the application has been finally determined;

(b) applications for protection visas where the grants of the visas have been refused and the applications have been finally determined;

makes a further application for a protection visa the Minister, in considering the further application:

(d) may have regard to, and take to be correct, any decision that the Minister made about or because of that information."

The effect of that section was restricted by s 48A and s 48B which were introduced into the Act by s 14 of the Migration Legislation Amendment Act (No 6) 1995. Section 48A(1) provides:

"Subject to section 48B, a non-citizen who, while in the migration zone, has made:

(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

(b) applications for protection visas, where the grants of the visas have been refused (whether or not the application has been finally determined);

may not make a further application for a protection visa while in the migration zone."

Section 48B provides:

"(1)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which te notice is given.

(2) The power under subsection (1) may only be exercised by the Minister personally.

(3) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

(a) sets out the determination; and

(b) sets out the reasons for the determination, referring in particular to the Minister's reasons for thinking that
his or her actions are in the public interest.

(4) ...

(5) ...

(6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances."

These provisions are relevant in considering whether the implication of a power in the Tribunal to re‑open or reconsider a decision is proper. Mr Downing submitted that there provisions are particular safeguards or fail‑safe mechanisms which render it unnecessary for the Tribunal to have a power to reconsider or re‑open a decision on the merits. If a decision is made on the merits and further relevant material subsequently becomes available, the provisions provide a mechanism for an applicant to use that material in support of a further application for a protection visa. Such a right, however, has the potential to be rather restricted because if the further application for a protection visa is made the Minister, in considering it, is not required to reconsider any information considered in any earlier application and may have regard to, and take to be correct, any decision that the Minister made about or because of that information: s 50. Any such further application cannot be made while the applicant is in the migration zone (basically Australia): s 48A, unless the Minister thinks it is in the public interest not to apply s 48A: s 48B.

In what circumstances should a court find an implication in the words of a statute? As French J and Beazley JJ said in Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 at 48 "statutory implications are not to be made lightly". The threshold of "necessity" has been rejected in favour of the formulation that the implication be "proper". In Austero (supra) French and Beazley JJ accepted as a correct formulation the following passage in Bennion, Statutory Interpretation (2nd ed, 1992), 367:

"The question of whether an implication should be found within the express words of an enactment depends on whether it is proper or legitimate to find the implication in arriving at the legal meaning of the enactment, having regard to the accepted guides to legislative intention. It is for the court to decide whether a suggested implication is 'proper'. This may involve a consideration of the rules of language or the principles of law, or both together. Where the point is doubtful it will, as always in interpretation, call for a weighing and balancing of the relevant factors".

Mr Niall relied particularly on s 420 and submitted that, as the objectives of the Tribunal are to provide a mechanism of review which is fair, just, economical, informal and quick, and as the Tribunal is not to be bound by technicalities or legal forms, and is to act according to substantial justice and the merits of the case, it follows that a power in the Tribunal to re‑open or reconsider a decision should be implied as it would promote those objectives. He relied upon Sloane (supra, 443) where French J said that a power to re‑open avoids "the necessity of invoking a full panoply of judicial or expressed statutory review procedures". I note in passing that in the legislation before French J there was a provision identical to s 420 which applied to the Immigration Review Tribunal: s 64E of the Migration Legislation Amendment Act 1989. However as the powers of the Immigration Review Tribunal were not under consideration in Sloane v Minister for Immigration, Local Government and Ethnic Affairs (supra) the relevance of that provision did not arise.

Mr Niall referred to the judgment of Beaumont J in Comptroller‑General of Customs v Kawasaki Motors Pty Ltd (supra) in which the Full Court had to consider whether a decision to revoke a tariff concession was effective. Beaumont J asked the question (225) whether, on the true construction of the statute "any function actually remained to be performed". In the circumstances of this case, that question must be answered in the negative. After the Tribunal prepared its written statement in respect of its "decision on a review" in accordance with s 430(1) and gave a copy of it to the applicant and the secretary, it had no further function to perform.

Mr Niall sought support from the decision of the New Zealand Court of Appeal in R v Loumoli [1995] 2 NZLR 656 where it was held that once a jury had been discharged, although it could not be recalled and sent back to reconsider its verdict, it might be reconvened to correct an error made in the conveyance or recording of the verdict. It was implicit in this decision that a jury was not functus officio at the point at which it had been discharged. Mr Niall relied upon this decision in support of his submission that the fact that the Tribunal had made a determination on the merits did not mean that it was functus officio particularly when it had sought information from the Sri Lanka Red Cross and it was told that they were still investigating the matter. However that decision is of no assistance in determining the scope and extent of the legislative intention in the Act as to the extent of the powers of the Tribunal.

Mr Downing submitted that the judgment of French J in Sloane v Minister for Immigration, Local Government and Ethnic Affairs (supra) supported the submission that an implication of the power to re‑open was not proper or necessary because there was now a new structure in the Act which provided a greater opportunity for review than in the past and in the situation confronting French J there was no power to lodge further application.

Mr Downing submitted that the statutory scheme militated against the proposition that there could be a decision after a final operative decision for the purposes of s 430 which enabled a reconsideration or re‑opening of that final operative decision. He relied upon s 416 which contemplates that subsequent information might arise not considered on an application and provides a mechanism for further consideration. He also drew in aid s 420(1) which requires a quick mechanism of review as an objective of the Tribunal. He submitted that these sections militated against an implication of a power in the Tribunal to re-open or reconsider a decision of the merits of a review.

The right recognised by s 50 may be restricted in the manner to which I have referred but in my opinion it constitutes a statutory recognition that circumstances and facts may emerge after a Tribunal decision which ought to be the subject of a further application for a visa. Section 50(a) contemplates that the refusal of the grant of the visa has been the subject of an application to the Tribunal, so much appears from the words "the application has been finally determined". The Minister is not bound to disregard information in the earlier application, nor is the Minister bound to have regard to the earlier decision. The Minister has a discretion but the fact of the further application procedure being available militates against it being proper or desirable, or even necessary, that the Tribunal have a power to re‑open or reconsider a decision. I draw the same conclusions from the existence of the opportunity to make a further application to the Tribunal to review an RRT‑reviewable decision: s 416. Again there is a recognition that circumstances and facts relevant to the application of the applicant for a visa may emerge after the Tribunal's decision which may be brought before the Tribunal if a further application is made resulting in an RRT‑reviewable decision.

When one takes into account the statutory provisions to which I have referred and in particular has regard to the provisions relating to the opportunity to make a further application to the Minister and a further application to the Tribunal, I do not consider it would be proper, in the absence of a clear legislative intention, to imply a power in the Tribunal to reconsider or re‑open a decision.

Conclusion

It follows, therefore, in my opinion, that the Tribunal did not have the power to re‑open or reconsider its decision of 31 October 1995 and that it acted correctly in informing the application's solicitors on 5 August 1995 that it was functus officio. There is no implied power on the part of the Tribunal to reconsider a decision on the review as provided for in s 430.

Counsel for the applicant: Mr R Niall

Solicitors for the applicant: Fernandez Canda & Co

Counsel for the respondent: Mr R Downing

Solicitors for the respondent: Australian Government Solicitor

Date of Hearing: 28 May 1997

Date of Judgment: 25 June 1997

I certify that this and the preceding thirty-two (32) pages are a true copy of the Reasons for Judgment of the Honourable Justice Goldberg

Associate:

Date: 25 June 1997

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