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 out the information in a way which is not only complete, but clear as well. A notification letter that does not clearly convey the information in s 66(2) will result in an invalid notification so that the prescribed period in which to apply for review will not have started to run.
As a result of DFQ17, the Department sent the applicant a second notification letter (the second notification) dated 01 April 2020 on the basis that the first notification letter did not clearly convey the time in which the application for review may be made. The effect of this second notification was that the applicant’s prescribed period to seek review ended on 28 April 2020.
A second review application was lodged with the Tribunal on 9 June 2022 in relation to that second notification.
The questions that now arise are whether the Tribunal has jurisdiction in relation to the second application for review and, if not, whether the Tribunal’s first decision that it had no jurisdiction should be revoked and that review reopened.
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.
CONSIDERATION
Was 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.
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[5] where Driver J 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.
[5] [2019] FCCA 228.
Turning now to the present case, I consider that the Department’s first notification letter did not clearly state the time in which the application for review may be made and was therefore affected by the type of error identified in DFQ17. This means that the first notification letter did not have the effect of starting the prescribed period for review, which in turns means that the first application for review was not lodged outside of the prescribed period.
Accordingly, I consider that the Tribunal has impermissibly denied itself jurisdiction in relation to the first application for review. Where, in similar circumstances to Mora, the Court in DFQ17 has found that the Tribunal’s determination of jurisdiction was incorrect, I consider that the Tribunal’s power to reopen its first decision is enlivened. I reach this conclusion on the basis that, following DFQ17, there is no uncertainty surrounding the error, and it could not be said that the error relates to a mere second thought or change of mind.
Whether the matter should be reopened
As I have noted, even where the power to revoke the decision and reopen the matter arises, the Tribunal is not bound to do so, and it is a separate question as to whether to exercise the power. 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.
In this matter, there is clear recent judicial authority in DFQ17 to support the conclusion that the no jurisdiction decision of the first Tribunal is plainly wrong.
The Tribunal also considered the reasoning of the Court in AZF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[6]. In that case, which similarly also related to circumstances where the review application had been applied for out of time and was affected by defective notification, the Court concluded that the Tribunal had failed to exercise jurisdiction in respect of a valid review application.
[6] [2021] FCCA 2008.
There is no unfairness or detriment to the Minister or to the applicant. Notably, the first review application, which engaged the Tribunal’s jurisdiction, remains undetermined as the Tribunal has not carried out its statutory function of reviewing the matter. There is no barrier or restriction on the Tribunal taking action to revoke the decision of the first Tribunal and reopen the matter.
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 PSM
Deputy President