1904527 (Refugee) - [2022] AATA 3392

1904527 (Refugee) [2022] AATA 3392 (19 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:1904527
2208444

COUNTRY OF REFERENCE: Vietnam
MEMBER:Deputy President J.L Redfern PSM
DATE:19 July 2022
PLACE OF DECISION: Sydney
DECISION:In relation to 2208444, the Tribunal does not have jurisdiction in this matter.
In relation to 1904527, the Tribunal’s decision dated 28 March 2019 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 19 July 2022 at 12:12pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – statutory requirements for notification of decision – time limit for lodging review application – Tribunal’s power to revoke and reopen its decision – whether to exercise the power – decision under review revoked and substituted
LEGISLATION
Migration Act 1958, ss 65, 66
Migration Regulations 1994
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 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 27 November 2018 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 27 November 2018, the delegate purported to notify the applicant of the decision (the first notification). A review application was lodged with the Tribunal on 27 February 2019 (the first review application).
On 28 March 2019, 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 the Tribunal’s decision that it did not have jurisdiction.
Following the Tribunal’s first decision, the Full Federal Court handed down its judgment in DFQ17 v Minister of Immigration and Border Protection [2019] FCAFC 64 which considered the notification requirements that the Minister must comply with in notifying decisions to refuse to grant a visa. The Court held that the requirement in s 66(2)(d) of the Act for the Minister to 'state' the time in which the review application may be made requires the notification letter set…

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 1904527 (Refugee)

Details

AGLC: 1904527 (Refugee) [2022] AATA 3392
Case: [2022] AATA 3392
Decision Date: 19 July 2022

CaseChat Overview and Summary

The applicant sought review of a decision concerning a protection visa for Vietnam. The dispute before the Administrative Appeals Tribunal (AAT) concerned the applicant's second application for review, which was lodged significantly outside the statutory time limit. The Tribunal was required to determine whether it had jurisdiction over this second application and, if not, whether it possessed the power to revoke its earlier decision that it lacked jurisdiction and to reopen the matter.

The Tribunal first considered the timeliness of the second application for review. It found that the applicant had been notified of the initial decision on 1 April 2020, establishing a deadline of 28 April 2020 for lodging a review application. As the second application was not received until 9 June 2022, the Tribunal concluded it had no jurisdiction in relation to this application. The Tribunal then turned to the question of its power to revoke and reopen its prior decision. Drawing on the High Court's decision in *Minister for Immigration and Multicultural Affairs v Bhardwaj* and the AAT's own previous decisions in *Mora (Migration)* and *Re Michael and Secretary, Department of Employment, Science and Training; Re Edwards and Department of Health and Ageing*, the Tribunal affirmed that it had the power to revoke a decision to correct an obvious error. However, it noted that the exercise of this power required careful consideration of whether it was wise and just to do so, taking into account factors such as fairness to the parties and the nature of the error.

Applying these principles, the Tribunal determined that it was satisfied that its first decision, which found a lack of jurisdiction, should be revoked. The Tribunal considered it just and appropriate in all the circumstances to reopen the matter. Consequently, the Tribunal revoked its earlier decision dated 28 March 2019 and substituted it with a decision that the Tribunal has jurisdiction to conduct a review in relation to application number 1904527. The Tribunal reiterated that it did not have jurisdiction in relation to application number 2208444.

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

For the reasons set out above, I am satisfied that the Tribunal’s first decision should be revoked and that it would be just and appropriate in all of the circumstances to reopen the matter.DECISION In relation to 2208444, the Tribunal does not have jurisdiction in this matter. In relation to 1904527, the Tribunal’s decision dated 28 March 2019 that it did not have jurisdiction is revoked and substituted with a decision that the Tribunal has jurisdiction to conduct a review.J.L Redfern PSMDeputy President

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 1 April 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 28 April 2020. As the second application for review was not received by the Tribunal until 9 June 2022 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.