Case: NBMB v Minister for Immigration and Citizenship (2008) 100 ALD 118
Outcome: considered
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. There are good reasons that it should be available to be so exercised it, namely that the decision of Member Muling had been quashed for jurisdictional error. As Flick J said in NBMB at [39]-[40]: The decision of the Tribunal as initially constituted had been set aside by the Federal Magistrates Court. Where such an order is made, "justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing" : Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43. See also Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. The "usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed": Industry Research and Development Board v IMT Ltd [2001] FCA 85 at [40] . There is no reason to impose any constraint upon the power conferred by s 421(2). The decision of the initial tribunal having been set aside, the exercise of the power conferred by s 421(2) thereafter arose for consideration. It is a power that can be exercised from time to time: s 31 of the Acts Interpretation Act 1901 (Cth). The discretion to be exercised by the principal member or his delegate was a discretion to be exercised in light of all the circumstances, including the order of the Federal Magistrates Court and what is recognised as "justice being seen to be done." Section 421(2) confers a power of appointment upon the principal member or his delegate: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at [40] per McHugh J. In the present proceedings, that power was exercised by a person with an appropriate delegation. The applicant submitted that s 33(1) of the Acts Interpretation Act 1901 (Cth) does not support the conclusion I have reached, although Flick J in NBMB in the passage set out above also referred to it. It relevantly provides that, where an Act confers a power, then that power may be exercised from time to time as the occasion arises, unless the contrary intention appears. The argument was that, by reason of ss 422 and 422A, a contrary intention did appear. I have rejected the contention that ss 422 and 422A cover all the circumstances in which the Tribunal may be reconstituted, as I consider they confine the general power in s 421 only in respect of the circumstances to which they relate. In other circumstances, or at least in circumstances such as the present, they do not limit the availability of s 421 to permit the reconstitution of the Tribunal. They do not reveal the contrary intention asserted on behalf of the applicant. Section 33(1) of the Acts Interpretation Act 1901 (Cth) therefore can, as it does, make clear that the power under s 421 may where it is available to be used be exercised from time to time. In the light of that conclusion, I do not need to consider the alternative contention of the Minister that, in any event, s 422 applies as the circumstances enable the Tribunal to be reconstituted because the initial member is not, or is no longer "available" for the purpose of the review. That was a possibility adverted to by Flick J in NBMB at [41]. There are some circumstances where, in the interests of justice, the remitted review might clearly be conducted by the initially appointed member (an obvious example is where the member applied the law as expressed in a binding decision, but that decision was subsequently reversed on an appeal). Thus, it would not appear that the quashing of a decision of the initial member necessarily leads to that member then becoming no longer "available" to conduct the review. Consequently, if that alternative contention is correct, the concept of availability would be a somewhat amorphous one, perhaps depending on the nature and gravity of the jurisdictional error in the first decision. It is not clear that such an inquiry was intended when a decision of the Tribunal has been quashed for jurisdictional error. I note the applicant's further argument in support of the alternative contention, based on s 422(1)(b) referring to the initial member of the Tribunal no longer being available for the purpose of the review "at the place" where the review is being conducted. It was argued that such an expression, directing attention to a geographical focus as one of the elements for the exercise of the power, also indicates that s 422 is not available in circumstances such as the present to reconstitute the Tribunal. It is not necessary to address that argument, in view of my conclusion above. I note that the "place where the review is being conducted" is not defined in the Act. Section 430A refers to the place at which a decision is to be handed down. A review may be conducted by a member sitting in one location or State, and the visa applicant being in another location or State; sometimes a legal representative or another migration agent, or an interpreter, is in yet another location. Sometimes, I assume, the hearing conducted under s 425 will occur away from the location or State in which the application for review was filed. I suspect that the reference to the "place where the review is being conducted" is not a necessary limiting factor upon when a member is no longer "available" to conduct that review. As I have said, it is not necessary to decide that question.