Case: SZLQK v Minister for Immigration and Citizenship [2008] FMCA 633
Outcome: considered
applicant relies upon the decision of Lindsay FM in SZLQK v Minister for Immigration and Citizenship [2008] FMCA 633 ( SZLQK ), delivered on 23 May 2008. His Honour there determined that the scheme of the Act required that s 421 dealt only with the initial constitution of the Tribunal, that reconstitution of the Tribunal could not be effected by using s 421 of the Act, and that reconstitution of the Tribunal could occur only if s 422 or s 422A was available in the particular circumstances: see at [14]-[15]. His Honour thought that, otherwise, there would be no need for either of those provisions: see at [23]-[24]. He specifically indicated that cl 19 of the Principal Member's Direction issued on 9 August 2007 headed "Caseload and Constitution Policy" (which is in the same terms as cl 20 of the current direction) indicated a misapprehension on the part of the Principal Member that a remittal for reconsideration had the effect of requiring the constitution of a wholly new review: see at [33]. His Honour concluded that, in the circumstances of that case, s 422 was not available as a mechanism to reconstitute the Tribunal by the Principal Member (at [43]), and that the only means by which that could be done would be under s 422A. The Principal Member had not made the reconstitution pursuant to that section. Hence, there was error on the part of the Principal Member in appointing a different member to constitute the Tribunal. Nevertheless, his Honour concluded that the error on the part of the Principal Member was not a jurisdictional error going to the validity of the decision of the Tribunal. It was a procedural error, and so the challenge did not succeed. In NBMB v Minister for Immigration and Citizenship (2008) 100 ALD 118 ( NBMB ), delivered on 26 February 2008, Flick J reached a different conclusion. As it happened, his Honour's conclusion was not part of the ultimate reason for deciding the case. In the course of a challenge to a decision of the Tribunal, the applicant sought leave to amend the application to allege that the reconstitution of the Tribunal on the remittal of the review had been improper. His Honour refused leave to so amend the application, and in any event his Honour said that he would have resolved the point adversely to that applicant. In that case, as here, the Minister said that the reconstitution of the Tribunal following the quashing of its earlier decision was made under s 421 of the Act rather than s 422A of the Act (as contemplated by Lindsay FM in SZLQK ). His Honour noted that the justice of the case, when a decision of the Tribunal has been set aside, is generally that the Tribunal be reconstituted by a different member: see also Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43; Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. In NBMB , at [39]-[41], Flick J decided that there was no reason to impose any constraint upon the power conferred by s 421(2) in that circumstance. As he pointed out, it is a power that can be exercised from time to time: Acts Interpretation Act 1901 (Cth), s 33(1). The discretion to exercise that power, his Honour said, is to be exercised in the light of all the circumstances, including the order of the Federal Magistrates Court quashing the initial decision and what is recognised as "justice being seen to be done". His Honour also adverted to the possibility that the unavailability of a member for the purposes of s 422 may not simply be where the term of appointment has expired, or the member has died or become unable to carry out his duties, or has resigned. Unavailability might also arise, his Honour speculated at [41], where an order is made quashing the decision of the Tribunal as originally constituted. Otherwise, a member may remain "available" even though "justice in general is better seen to be done" if that member did not further participate in any re-hearing.