Australia: Case note: When are the Refugee and Migration Review Tribunals functus officio?

Government Affairs Alert
Last Updated: 17 September 2012
Article by Lenny Leerdam

The Full Court's judgment in Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 has significant practical implications for the Refugee and Migration Review Tribunals, and, depending on the statutory regimes within which they operate, potentially for administrative decision makers more broadly.

The Full Court's judgment establishes that:

  • The Tribunal is not functus offico until its decision on a review has been communicated irrevocably and externally to interested parties, including at least the applicant to the review.
  • The Tribunal will commit jurisdictional error if it declines to consider material on the incorrect view that it is functus officio at the time it receives the material. The Tribunal may or may not be under a further obligation to consider the material received.

The Minister's appeal

In SZQOY v Minister for Immigration and Citizenship [2012] FMCA 289, his Honour Cameron FM held that the RRT was not functus officio at the time it received a fax on behalf of the first respondent (an applicant for a Protection visa) because the Tribunal's decision was not beyond recall when the fax was received (at [43]-[44]).

Federal Magistrate Cameron disagreed with Smith FM's earlier judgment in SZQCN v Minister for Immigration and Citizenship [2011] FMCA 606, in which Smith FM held that a decision of the RRT is deemed to be final at all points of time (that is, for the whole day) on the date written on the RRT's decision record. His Honour Smith FM therefore held that the RRT is functus officio at the first point in time on the date specified on the decision record (at [65]).

His Honour Cameron FM reasoned that, although the RRT's decision had been electronically transmitted to the Registry to be sent out, the Tribunal member could have overridden this electronic direction. Because the RRT's decision was not in fact dispatched externally until after the first respondent's fax was received by the Tribunal, the Tribunal was not functus officio, and erred in concluding that it was, when it received the fax. Further, the RRT 'should have considered [the fax]' (at [44]).

The Minister appealed, and argued that once a Tribunal member has finalised the decision in her or his own mind, and transmitted it with reasons to the Registry, authorising the Registry to take all steps that flow from the making of a decision and the giving of reasons, the review is over and the Tribunal is functus officio.

The Full Court's judgment dismissing the appeal

All three judges delivered separate reasons for judgment dismissing the Minister's appeal. Both Barker and Logan JJ indicated that they were in general agreement with the reasons of Buchanan J.

Justice Buchanan did not accept that a decision was 'made' by the RRT at the time of an individual communication by an RRT member to the Tribunal Registry, which communication was expected to lead ultimately to notification of the decision on the review. A conclusion to this effect would require an accompanying conclusion that, within the intervening period prior to notification, the decision and reasons were incapable of recall or amendment (at [23]).

At [24], his Honour held that the circumstances in which recall, amendment, revision or reversal of a decision might be appropriate may include where there had been an important development in the law, or the emergence of a critical fact. Whilst the RRT may not be bound to receive new material in such circumstances, it was empowered to do so (also at [24]).

Justice Buchanan endorsed the reasoning of Madgwick J in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 (Semunigus) at [102]-[103]. His Honour did not agree with Higgins J in Semunigus (see [26]-[29]).

Justice Logan stated at [34] (and see [40]) 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 ... and to the Secretary and to the ... Minister's department by some overt act.' At [45], his Honour concluded that the RRT accordingly erred in finding it was unable to consider the first respondent's further submissions. It was not necessary, his Honour held, to decide whether the RRT was obliged to consider those submissions (see, similarly, Logan J at [56] and Buchanan J at [24]).

Justice Barker took into account public policy considerations, at [58]. At [57], his Honour held that communication to a party, and probably the Secretary, was a critical point in the process by which the decision arising from the review process was beyond recall.

Clarification and implications

The Full Court's judgment provides important clarification for the Tribunals as to the point at which they are functus officio. The position prior to the Full Court's judgment was uncertain, owing to the inconsistent judgments of the Federal Magistrates Court.

The Full Court's reasoning appears equally applicable to the decision making regime pursuant to which primary decisions of the Minister and his or her delegates are made. However, the general availability of merits review by the Tribunals of primary decisions means that functus officio arguments are less likely to be raised in the primary decision making context.

The Full Court's judgment has the potential to be applied more broadly, beyond the Migration Act context, to other administrative decision makers. This potential application will depend, critically, on the particular statutory framework within which the decision maker operates. A case by case analysis will be called for in such cases.

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