1619754 (Refugee)
[2021] AATA 3919
•2 September 2021
1619754 (Refugee) [2021] AATA 3919 (2 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1619754
COUNTRY OF REFERENCE: Vietnam
MEMBER:Deputy President J.L Redfern PSM
DATE:2 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal’s decision dated 15 May 2017 that it did not have jurisdiction is revoked and substituted with a decision that the Tribunal has jurisdiction to conduct a review.
Statement made on 2 September 2021 at 10:45 am
CATCHWORDS:
REFUGEE – Application for a Temporary Protection (Class XD) (Subclass 785) visa – Vietnam – reconsideration of an earlier decision made by the Tribunal – earlier decision was a ‘no jurisdiction’ decision – where no decision has been made on the merits of the review – whether the Tribunal has the power to revoke an earlier decision – whether the Tribunal should exercise the power to reconsider its earlier decision– where parties agree that the matter should be reconsidered – earlier decision is set aside or revoked and substituted with a decision that the Tribunal has jurisdiction to conduct a review.
CASES:
BIW17 v Minister for Immigration and Border Protection [2018] HCATrans 3
Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Erasga v Minister for Immigration and Border Protection [2019] FCCA 228
Lokuwithana v Minister for Immigration and Border Protection [2017] FCCA 176Minister for Immigration and Border Protection v BSD17 & Anor [2017] FCCA 2888
Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Mora (Migration) [2016] AATA 4198LEGISLATION:
Migration Act 1958 (Cth) s 65
Migration Regulations 1994 (Cth) r. 2.0FAny references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 December 2014 to refuse to grant the visa applicant a Temporary Protection (Class XD) Subclass 785 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for a Protection (Class XA) Subclass 866 visa on 25 June 2014. By operation of reg.2.08F of the Migration Regulations 1994 (the Regulations), that visa application converted to an application for a Temporary (Class XD) Subclass 785 visa on 16 December 2014.
On 16 December 2014, the delegate refused to grant the applicant a Protection (Class XA) Subclass 866 visa, even though by the operation of reg 2.08F, such an application must be treated as an application for a Subclass 785 visa.
The applicant applied to the Tribunal for review of the decision of the delegate on 24 December 2014. On 21 October 2015, the Tribunal set aside the decision of the delegate to refuse to grant a Subclass 866 visa and substituted a decision to refuse to grant the applicant a Subclass 785 visa.
On 10 November 2016, the Federal Circuit Court of Australia remitted this decision to the Tribunal for reconsideration on the basis that the decision was legally unreasonable. The remittal was by consent.
On 15 May 2017, the second Tribunal (differently constituted) found that it did not have jurisdiction because no decision had been made by a delegate on the review of the applicant’s Subclass 785 visa, finding that there was no reviewable decision at the time of the decision. The applicant did not seek judicial review of this decision.
On 21 May 2021, the Secretary of the Department of Home Affairs (the Department) wrote to the Tribunal submitting that the second Tribunal’s decision of 15 May 2017 should be revoked and that the case should be reopened so that the Tribunal could conduct the review as required. By letter dated 17 June 2021, the Tribunal provided the applicant with a copy of the written submissions of the Secretary and invited the applicant to provide any written views and or legal submissions on whether the second Tribunal’s decision should be reopened. On 13 July 2021, the Tribunal received an email response from the applicant’s representative to the effect that the applicant agreed with the submissions made by the Secretary.
I have considered the submissions and have determined to revoke the previous decision dismissing the application for want of jurisdiction. My reasons follow.
CONSIDERATION
In this matter the issues that need to be determined are whether I have the power to revoke the decision of the second Tribunal, and thereby reopen the case for consideration, and if so, whether I should do so.
Whether the Tribunal has the power to revoke and reopen the matter
The decision record of the second Tribunal reveals that the presiding member had regard to a decision made by another Tribunal member in a review that involved similar circumstances. While the member did not consider he was bound by that decision, similar reasoning was applied and relevantly, the Tribunal found:
13. Given that the operation of conversion regulation r.2.08F on 16 December 2014 converted the applicant’s Permanent Protection (Class XA) visa application to a Temporary Protection (Class XD) visa application, the delegate had no jurisdiction to make a decision on a Permanent Protection (Class XA) visa with respect to the applicant. However, as discussed above, the Tribunal notes that the delegate’s record of decision is not capable of a construction otherwise than having been a decision to “refuse to grant [the applicant] a Protection (Class XA) visa”. That is to say the delegate has not made a decision on the applicant’s Temporary Protection (Class XD) visa application.
14. Accordingly the Tribunal must find that no reviewable decision has been made at the time of the review application.
15. As no reviewable decision had been made at the time the review application was lodged, it follows that the application was not properly considered, and the Tribunal does not have jurisdiction in this matter.
It is submitted by the Secretary that the Tribunal has power to revoke the decision of the second Tribunal to reopen the decision because the second decision was plainly in error. The submission is as follows:
The Conversion Regulation rendered the applicant’s application an application for a Temporary Protection visa and, accordingly, the delegate’s decision a decision on that Temporary Protection visa application. The delegate's decision was a reviewable decision for the Tribunal and, indeed, the first Tribunal, while identifying the change brought about by the Conversion Regulation, did not consider there to be any impediment to considering the application on that basis. The Court has confirmed this position in cases such as BAP17 v Minister for Immigration and Border Protection [2018] FCA 1265 at [18]; BIW17 v Minister for Immigration and Border Protection [2017] FCA 1606; and BIW17 v Minister for Immigration & Border Protection [2018] HCA Trans 3. In the latter, Gageler J rejected the argument that the Tribunal lacked jurisdiction to determine whether the applicant satisfied criteria for the grant of a Temporary Protection visa in circumstances where the delegate, also on 16 December 2014, had purported to refuse to grant the applicant a Protection visa.
It is further submitted that even if the delegate’s decision was invalid, which the Department did not accept, on the basis of the decision in Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, the Tribunal still has the power to review a decision even if that decision was invalid or not legally effective and that it in fact had an obligation to do so.
The question of whether the Tribunal had the power to revoke a decision and reopen the matter was considered in Mora (Migration) [2016] AATA 4198 (Mora). In Mora, the Tribunal (constituted by the former President, Justice Kerr, Deputy President Redfern and Senior Member Holmes) considered whether the Tribunal had power to reopen a matter which was dismissed by a previous Tribunal for want of jurisdiction where the authority on which the decision was based was subsequently overruled by the Full Court of the Federal Court of Australia.
The Tribunal considered the reasoning of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 and found that it did have power to revoke a previous decision to correct an obvious error but that the question of whether it was wise to do so was a separate issue for consideration.[1]
[1] Mora (Migration) [2016] AATA 4198 at [87].
The Tribunal’s reasoning in Mora was cited with approval by the Federal Circuit Court in Lokuwithana v Minister for Immigration and Border Protection at [103] as follows:
…. I agree with the observations by the AAT in Mora (Migration) [2016] AATA 4198 at [13] that a Tribunal must consider whether it would be wise to use the power to re-open a case. I agree that one of the considerations in deciding whether to exercise this power would be fairness to the parties: [2]
[2] [2017] FCCA 176.
The Federal Circuit Court found that the Tribunal was not required to reopen a matter simply because a decision made in a review contains a jurisdictional error and found that while it may be lawful for the Tribunal to reopen a case, the Tribunal must consider whether it would be ‘wise’ to reopen the matter in the circumstances of the case.
Mora was also cited by the Federal Circuit Court in Erasga v Minister for Immigration and Border Protection [3] where Judge Driver concluded that he did not accept that the decision of Mora was inconsistent with judicial authority and that it provides practical guidance, at [75]:
… . The cautionary guidance provided to Tribunal members in Mora did not provide any legal obstacle in this case. In that regard, I do not accept that the Tribunal decision in Mora is inconsistent with judicial authority. The Tribunal in Mora was simply providing practical guidance in order to ensure that Tribunal reviews are not re-opened excessively.
[3] [2019] FCCA 228.
In considering an application for special leave to appeal lodged by an appellant in similar circumstances to the present, the High Court in BIW17 v Minister for Immigration and Border Protection [2018] HCATrans 3 rejected an argument that the Tribunal lacked jurisdiction to review a decision refusing to grant a Class XD and not a Class XA visa. The Court considered that as a purported decision to refuse to grant a protection visa had been made, it amounted to a Part-7 reviewable decision as defined in s 411(1)(c) of the Act, and was capable of giving rise to a valid application for review.
Consistent with this, it is apparent that the Tribunal does have jurisdiction to review a decision to refuse a Protection (Class XA) Subclass 866 visa, even though the application for the visa was taken to have been converted to an application for a Temporary Protection (Class XD) Subclass 785 visa on the day of the delegate’s decision. Relevantly, this approach was endorsed by the Court in Minister for Immigration and Border Protection v BSD17 [2017] FCCA 2888 (BSD17), which was an appeal by the Minister of a Tribunal decision also concerning a reg 2.08F conversion case.
The finding made by the second Tribunal is in similar terms as the finding in BSD17. I therefore find that where there has been clear jurisdictional error in the second Tribunal decision and there is power to revoke this decision and to reopen the matter.
Whether the matter should be reopened
In Mora, the Tribunal considered certain factors that may be relevant in deciding whether to revoke a decision and reopen the matter for further consideration These factors are set out at [20] of the Tribunal’s decision and can be summarised as follows:
(1) Where there is clear, recent and unambiguous judicial authority available to support the conclusion that the tribunal’s earlier ‘no jurisdiction’ decision was plainly wrong.
(2) Where the application to reopen was filed promptly.
(3) Whether the tribunal has not yet considered, let alone made a decision on, the merits of the review.
(4) Whether the ‘parties’ (using that term loosely to include the Secretary) agree as to what course the tribunal should adopt.
(5) Whether there is any unfairness or detriment to sound administrative practice that might flow from acceding to the request.
(6) Whether are any discretionary reasons that might have been raised as reasons for a court to refuse an applicant’s relief had they instead sought judicial review. and
(7) Whether the outcome is consistent with the tribunal’s objectives of providing a mechanism of review that is fair, just, economical and quick, and is not inconsistent with promoting public trust in its decision-making.
More recently in Minister for Immigration and Border Protection v CLV16, the Full Federal Court held that the Tribunal should reopen a case that is affected by a jurisdictional error where the error forms the basis for the Tribunal to request to reopen and there is no barrier or restriction on the Tribunal taking action to reopen the matter. [4]
[4] [2018] FCAFC 80.
In this matter, there is clear recent judicial authority to support the conclusion that the ‘no jurisdiction’ decision of the second Tribunal is plainly wrong. The Minister and the applicant agree that the decision should be revoked and that the matter should be reopened. There is no unfairness or detriment to the Minister or to the applicant. Notably, his application for review remains undetermined as the Tribunal did not carry out its statutory function of reviewing the matter at the time it was remitted back to the Tribunal by the Federal Circuit Court in November 2016. There is no barrier or restriction on the Tribunal taking action to revoke the decision of the second Tribunal and reopen the matter.
For the reasons set out above, I am satisfied that the decision of the second Tribunal dated 15 May 2017 should be revoked and that it would be just and appropriate in all of the circumstances to reopen the matter.
DECISION
The Tribunal’s purported decision dated 15 May 2017 that it lacked jurisdiction is set aside or revoked and substituted with a decision that the Tribunal has jurisdiction to conduct a review. The Tribunal will be reconstituted for the purpose of hearing and determining the review.
J.L Redfern PSM
Deputy President
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