1708959 (Refugee) - [2022] AATA 1242

1708959 (Refugee) [2022] AATA 1242 (7 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:1708959
2114896

COUNTRY OF REFERENCE: Malaysia
MEMBER:Deputy President J.L Redfern PSM
DATE:7 March 2022
PLACE OF DECISION: Sydney
DECISION:In relation to 2114896, the Tribunal does not have jurisdiction in this matter.
In relation to 1708959, the Tribunal’s decision dated 2 June 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 7 March 2022 at 10:35 am

CATCHWORDS
PRACTICE AND PROCEDURE – Protection (Class XA) (Subclass 866) visa – Malaysia – re-opening and reconsideration of a decision made by the Tribunal – Tribunal found that it did not have jurisdiction as applicant did not apply for review within the prescribed time – notification of refusal decision under review found to be defective – applicant renotified – second application for review lodged outside of the prescribed period – whether the Tribunal has the power to revoke an earlier decision – whether the Tribunal should exercise the power to reconsider its earlier decision – ‘no jurisdiction’ finding in relation to second application – earlier decision revoked and substituted with a decision that the Tribunal has jurisdiction to conduct a review – principles in relation to revocation and reconsideration
LEGISLATION
Migration Act 1958, ss 65 and 66
CASES
AZF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2008
DFQ17 v Minister of Immigration and Border Protection [2019] FCAFC 64
Erasga v Minister for Immigration and Border Protection [2019] FCCA 228
Lokuwithana v Minister for Immigration and Border Protection [2017] FCCA 176
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Mora (Migration) [2016] AATA 4198
Re Michael and Secretary, Department of Employment, Science and Training; Re Edwards and Department of Health and Ageing [2006] AATA 227
Any 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 dependants.
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 March 2017 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 23 March 2017, the delegate purported to notify the applicant of the decision (the first notification). A review application was lodged with the Tribunal on 24 April 2017 (the first review application).
On 2 June 2017, the Tribunal made a decision that it did not have jurisdiction in that matter. The Tribunal found that, as the first review application was not received by the Tribunal within the prescribed period, it was not made in accordance with the relevant legislation. The applicant did not seek judicial review of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1708959 (Refugee)

Details

AGLC: 1708959 (Refugee) [2022] AATA 1242
Case: [2022] AATA 1242
Decision Date: 7 March 2022

CaseChat Overview and Summary

This matter concerned an application for review of a Protection (Class XA) (Subclass 866) visa decision. The applicant had previously lodged an application for review with the Tribunal, which found it lacked jurisdiction because the application was not lodged within the prescribed time. Following a defective notification of this refusal decision, the applicant was re-notified, and a second application for review was lodged, again outside the prescribed period. The central dispute before Deputy J.l Redfern Psm P was whether the Tribunal had the power to revoke its earlier decision and reconsider the matter, and if so, whether it should exercise that power.

The legal issues before the Tribunal were twofold: firstly, whether the second application for review was lodged within the prescribed time, and secondly, whether the Tribunal possessed the power to revoke its prior decision and reopen the matter. The Tribunal was required to determine if the second notification of the refusal decision complied with statutory requirements and, consequently, if the second application for review was validly made within the statutory timeframe. Furthermore, the Tribunal had to consider the principles governing its power to revoke and reconsider its own decisions, particularly in light of previous AAT and Federal Court authorities.

The Tribunal determined that the second application for review was not lodged within the prescribed period, meaning the Tribunal had no jurisdiction in relation to that application. However, the Tribunal found it had the power to revoke its earlier decision, which had found a lack of jurisdiction. This power, as established in cases such as *Mora (Migration) [2016] AATA 4198* and drawing on *Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11*, allows for the correction of obvious errors. The Tribunal considered that while the power to revoke exists, the wisdom of exercising it requires careful consideration of factors including fairness to the parties and the nature of any error, noting that reconsideration is rarely appropriate for mere second thoughts or changes of mind. In this instance, the Tribunal concluded that it should revoke its first decision and reopen that matter, substituting it with a decision that the Tribunal has jurisdiction to conduct a review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the second application for review was not received by the Tribunal until 24 October 2021 that application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in relation to that application.Whether the Tribunal has the power to revoke and reopen its first decision The question of whether the Tribunal has 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[1] 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.[2] As Hayne and Callinan JJ expressed in Bhardwaj, it may not be appropriate for a case to be revisited based upon second thoughts or a change of mind, or because a document or piece of evidence was not referred to in a decision, at [149] and [164].[1] [2002] HCA 11.[2] Mora (Migration) [2016] AATA 4198 at [87]. Mora followed a similar decision in Re Michael and Secretary, Department of Employment, Science and Training; Re Edwards and Department of Health and Ageing[3] where Downes J (sitting as then President of the AAT) referred at [13]–[15] to there being sound reasons to act with extreme caution before reconsidering a matter which had already been decided and that it would very rarely be wise for a tribunal to reconsider its own decision. Where the factual circumstances giving rise to the error in Bhardwaj were variously characterised by the High Court as an administrative oversight, administrative slip or administrative error, Downes J considered one appropriate basis for limiting reconsideration was to confine it to cases of administrative or similar type error, at [16].[3] [2006] AATA 227. 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: [4] [4] [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.

Ratio Decidendi

Legal Principle Established

For the reasons that follow, I have determined that the Tribunal has no jurisdiction in relation to the second application for review but that I should revoke the first decision in which the Tribunal found it did not have jurisdiction and reopen that matter.CONSIDERATIONWas the second application for review lodged within the prescribed period The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 18 May 2020 and dispatched by email. The Tribunal is satisfied that the second notification complied with the statutory requirements, including as explained in DFQ17. Therefore, the prescribed period to apply for review ended on 15 June 2020 As the second application for review was not received by the Tribunal until 24 October 2021 that application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in relation to that application.Whether the Tribunal has the power to revoke and reopen its first decision The question of whether the Tribunal has 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[1] 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.[2] As Hayne and Callinan JJ expressed in Bhardwaj, it may not be appropriate for a case to be revisited based upon second thoughts or a change of mind, or because a document or piece of evidence was not referred to in a decision, at [149] and [164].[1] [2002] HCA 11.[2] Mora (Migration) [2016] AATA 4198 at [87]. Mora followed a similar decision in Re Michael and Secretary, Department of Employment, Science and Training; Re Edwards and Department of Health and Ageing[3] where Downes J (sitting as then President of the AAT) referred at [13]–[15] to there being sound reasons to act with extreme caution before reconsidering a matter which had already been decided and that it would very rarely be wise for a tribunal to reconsider its own decision. Where the factual circumstances giving rise to the error in Bhardwaj were variously characterised by the High Court as an administrative oversight, administrative slip or administrative error, Downes J considered one appropriate basis for limiting reconsideration was to confine it to cases of administrative or similar type error, at [16].[3] [2006] AATA 227. 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: [4] [4] [2017] FCCA 176.