Aeo21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1228
•22 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AEO21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1228
File number: MLG 75 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 22 December 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal dismissing application because Tribunal had no jurisdiction – application for judicial review filed late – extension of time request – minimal delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 411, 412, 414, 476 & 477 Cases cited: BBD23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 883
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164
SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175
SZEYK v Minister for Immigration & Anor [2008] FMCA 1354
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 95 Date of hearing: 8 November 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr A Gardner Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 75 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AEO21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
22 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (“CB”) 14 & 41-46). She first arrived in Australia in December 2016 as the holder of an Electronic Travel Authority visa (CB 64).
On 17 February 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-40). The applicant provided copies of her Malaysian passport and identity card with that visa application (CB 41-46).
On 21 February 2017, the then Department of Immigration and Border Protection (the “Department”) acknowledged receipt of the visa application (via email) and asked the applicant to provide a certified copy of her current passport, fingerprints and a digital photograph (CB 47-58).
On 1 May 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 64-75).
On 2 May 2017, the applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (the “first Tribunal application”) (CB 92-93). In that first Tribunal review application, the applicant asked that all correspondence be sent to her directly and provided the Tribunal with an email address in that regard (CB 93).
On 11 May 2017, the applicant again applied to the Tribunal for review of the visa refusal decision (the “second Tribunal application”) (CB 144-145). The applicant again asked that all correspondence be sent to her directly and provided the Tribunal with the same email address (CB 145).
On 6 October 2020, the Tribunal invited the applicant to appear at a hearing before it (by telephone) on 29 October 2020 in relation to the first Tribunal application (CB 101-109).
On 22 October 2020, the Tribunal wrote to the applicant and provided her with a copy of the delegate’s decision (made on 1 May 2017) via email (CB 115-116). The Tribunal asked the applicant to read the document carefully ahead of her Tribunal hearing in relation to her first Tribunal application (CB 116).
On 29 October 2020, the applicant appeared before the Tribunal to give evidence and present arguments in relation to the first Tribunal application (CB 117-120).
On 30 October 2020, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (the “first Tribunal decision”) (CB 123-137). The applicant was notified of the first Tribunal decision by letter dated 2 November 2020 (sent to the applicant via email) (CB 121-122). A fact sheet was also included with the notification letter which set out the applicant’s review rights (CB 138-140).
On 4 November 2020, the Tribunal invited the applicant (by letter sent via email) to comment on the validity of the second Tribunal application (CB 154-156). That invitation letter stated:
It appears that your application is not a valid application as an application for review of the same delegate’s decision was previously made to the Tribunal. The case number for that first application is 1709598. The Tribunal made a decision on that application on 30 October 2020. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision.
I am of the view that that your application is not a valid application. However this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 18 November 2020. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
The Tribunal will not process any further documentation that appears to seek review of the same decision dated 1 May 2017. This means the Tribunal will not treat it as a new application for review. It will not allocate a new case number, or ask you to comment on the validity of any purported review application, or make a further decision about whether it has jurisdiction to review that decision.
On 5 November 2020, the applicant wrote to the Tribunal (via email) requesting a copy of the Tribunal decision (CB 157-158). That correspondence relevantly stated (CB 157):
Hello,
I have spoken with a lawyer and he tells me that I should have a ten or eleven page decision document outlining all reason relating to my case and your decision. Could you please forward me this information.
Thanking you in advance
On 6 November 2020, the Tribunal responded to the applicant as follows (CB 159):
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT and I refer to your email correspondence received by the Tribunal on 5 November 2020.
A decision has not been made by the Tribunal in matter 1710170. The Tribunal noted in the invitation to comment sent to you on 4 November 2020, that a decision had been made in the related matter of 1709598 on 30 October 2020. A copy of the Tribunal’s decision record and notification letter for 1709598 was sent to you on 2 November 2020 by email.
If you have any questions or are experiencing problems opening this email message, please contact us immediately at [email protected], or call 1800 228 333.
Please refer to the AAT website for information about temporary changes in place to respond to the impact of COVID-19 on services:
On 11 November 2020, the applicant was provided with an invoice in relation to her first Tribunal review (CB 142).
Later that same day (also on 11 November 2020), the applicant sought clarification from the Tribunal as follows (without alteration) (CB 142):
Hello I’m just confused which one of me
That I’m waiting for what a decision
Thanks you
On 13 November 2020, the Tribunal responded to the applicant (via email) advising as follows (CB 160):
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
I note that you sent email correspondence on 11 November 2020 to the AAT Debtors section about an invoice that was received for case file 1709598.
Please note that case 1709598 and 1710170 are separate matters. As in the email sent by the Tribunal to you on 6 November 2020, Casefile 1709598 has been finalised by the Tribunal. You have been sent separate correspondence by the Tribunal about 1709598 today.
Please note that Case file 1710170 is still active. A decision has not been made in this matter. You were sent an invitation to comment on the validity of application for review for 1710170 on 4 November 2020. The attached letter invites you to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 18 November 2020.
If you have any questions or are experiencing problems opening the document/s attached to this email message, please contact us immediately at [email protected], or call 1800 228 333.
Please refer to the AAT website for information about temporary changes in place to respond to the impact of COVID-19 on services: >
On 26 November 2020, the Tribunal determined that it did not have jurisdiction in relation to the second application because “the delegate’s decision ha[d] already been the subject of a valid review by the Tribunal” (the “Tribunal’s no jurisdiction decision”) (CB 163-165).
The applicant was notified of the Tribunal’s no jurisdiction decision by letter dated 30 November 2020 (sent to the applicant via email that same day, being on 30 November 2020, using the email address provided by the applicant in the second Tribunal application, together with a copy of the Tribunal’s no jurisdiction decision) (CB 161-162).
Also included with the notification of the Tribunal’s no jurisdiction decision was an information sheet containing “[i]nformation about decisions” (CB 166-168). That information sheet provided the applicant with information in relation to how she could seek review of the Tribunal’s no jurisdiction decision and relevantly provided as follows (CB 167):
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
On 19 January 2021, the applicant applied to this Court for judicial review of the Tribunal’s no jurisdiction decision. The application was accompanied by an affidavit annexing a copy of that decision. Unfortunately, that application was filed approximately 19 days outside of the 35-day time limit specified in s 477 of the Migration Act 1958 (Cth) (the “Act”).
Accordingly, the applicant requires an extension of time to pursue her substantive proceeding in this Court.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court concludes that an extension of time should not be granted.
CONSIDERATION
The materials before the Court include the application for an extension of time and supporting affidavit (both filed by the applicant on 19 January 2021), a court book numbering 168 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 24 October 2023 and an affidavit of service of Lachlan Charles Albert Glass affirmed on 30 October 2023 (and filed in this Court on 31 October 2023).
On 4 July 2023, procedural orders were made by Registrar Downing of this Court, giving the applicant an opportunity to file an amended application, any affidavits or a supplementary court book and written submissions. Those orders were amended by the Court on 13 October 2023. Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant appeared before this Court on 8 November 2023 without legal representation. She was assisted at the hearing by an interpreter in the Malay language.
The Court confirmed with the applicant that she had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was not legally represented, the Court explained to her that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. It was further noted that, in this matter, the Tribunal’s no jurisdiction decision was dated 26 November 2020. The date by which the applicant was required to file her application in this Court was 31 December 2020. The Court explained that, unfortunately, the applicant did not file her substantive application in this Court until 19 January 2021. Hence, as explained to the applicant, the delay in this matter is 19 days.
The Court explained that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided “grounds” explaining why she believes that the extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting, again, that the applicant appeared without any legal assistance, the Court outlined to her that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that, when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error.
The Court invited the applicant to address each of the factors outlined above and highlight anything that she considered relevant to her request for an extension of time. The applicant’s responses are discussed in the consideration that follows.
Length of delay
As this Court has previously explained, an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As set out above (at [27]), the delay in this matter is 19 days. In the Court’s view, the delay in this matter is not significant.
This weighs in favour of granting the extension of time.
Prejudice
In written submissions before this Court, the Minister conceded that there was no prejudice to him in granting an extension of time that could not be remedied by an order for costs.
This also weighs in favour of granting the extension of time.
Explanation
The applicant’s “grounds” for an extension of time in this matter provide as follows (without alteration):
1.According to section 477 of the Migration Act extension of time period can be granted when in the interests of justice.
2.I don’t have knowledge with formal documentation and first time happen to me how to handle my matter and at the same time I have financial problem.
The applicant’s oral submissions before this Court largely echoed the grounds above. The applicant also stressed that she was no sure what to do as it was the first time she found herself in such a situation and she found the process very confusing.
In relation to the applicant’s claim that she was confused by the process, did not understand the documents provided to her and was unsure of what was required of her, the Court sympathises. Ignorance, however, is no excuse. In this regard, the Court notes the reasoning of the Federal Court in in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, as follows:
38.In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.
An applicant seeking review of a decision made by the Tribunal must take the necessary steps to ensure that they do what is required of them. The applicant in this matter failed to do so. There is no evidence here, for example, that the applicant sought assistance from the Court or the Tribunal about how to lodge an application for review with the Court or what was required of her if she disagreed with the Tribunal’s decision.
The Court also notes that the fact sheet provided to the applicant with the Tribunal’s no jurisdiction decision included information about seeking review of that decision (CB 166-168). That information sheet relevantly stated (CB 167):
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
To the extent that the applicant claims that she was not able to file her application for judicial review in this Court because she was having financial difficulties and did not have the means to do so, the Court again sympathises and acknowledges that many of the applicants that appear before this Court do so in similar circumstances and have faced similar challenges. It is well settled, however, that claimed impecuniosity is not an acceptable explanation for failing to lodge a judicial review application within the prescribed time period: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]-[26] per Barker J. There is also no evidence before the Court to indicate that the applicant contacted the Court’s registry team to discuss this issue or seek any fee reduction in this regard.
The Court does not consider that the explanations provided by the applicant are satisfactory.
This weighs against the granting of an extension of time.
Merits
The most critical factor for the Court’s consideration when determining whether to grant an extension of time is, arguably, whether the proposed application for judicial review has any “prospect of success” (viewed impressionistically).
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what she thought the Tribunal “did wrong” in relation to her matter.
To assist the applicant, the Court explained to her that the only issue before the Court was whether there is an arguable case, viewed impressionistically, that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that the Tribunal was “asking her questions” that she could not answer and when she reviewed the documents that she had, she noticed that the identification number was not hers and notified the Tribunal accordingly. The applicant also told the Court that she felt that once she had told the Tribunal about the incorrect number, she was perceived as being untruthful.
The applicant’s oral submissions, to the extent that they point to any arguable case of error, will be addressed below.
The Tribunal’s Decision
In order to determine whether the substantive application for judicial review has any “merit”, it is useful to first set out the Tribunal’s decision.
The Tribunal’s decision (dated 26 November 2020) spans 11 paragraphs. In full, it provides as follows:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 1 May 2017 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act).
2.The review application was lodged with the Tribunal on 11 May 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
3.An application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application on 30 October 2020. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.
4.On 4 November 2020 the Tribunal wrote to the applicant inviting her to comment on the validity of the application for review in writing to the Tribunal by 18 November 2020.
5.On 5 November 2020 the applicant wrote to the Tribunal stating that “I have spoken with a lawyer and he tells me that I should have a ten or eleven page decision document outlining all reason relating to my case and your decision. Could you please forward me this information.”
6.On 6 November 2020 the Tribunal wrote to the applicant stating that ‘a decision has not been made by the Tribunal in matter 1710170. The Tribunal noted in the invitation to comment sent to you on 4 November 2020, that a decision had been made in the related matter of 1709598 on 30 October 2020. A copy of the Tribunal’s decision record and notification letter for 1709598 was sent to you on 2 November 2020 by email’.
7.On 11 November 2020 the applicant sent an enquiry to the Tribunal Debtors section regarding the payment of an invoice for the application fee for the decision made on 30 October 2020. The Tribunal responded to the applicant’s enquiry ‘I’m just confused which one of me That I’m waiting for what a decision Thank you’.
8.The Tribunal resent the decision record of 30 October 2020 and notification letter of 2 November 2020 to the applicant and noted “that Case file 1710170 is still active. A decision has not been made in this matter. You were sent an invitation to comment on the validity of application for review for 1710170 on 4 November 2020. The attached letter invites you to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 18 November 2020’.
9.No further response from the applicant has been received by the Tribunal about the validity of the application for review from the applicant.
10.As the delegate’s decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.
DECISION
11. The Tribunal does not have jurisdiction in this matter.
Proposed application for judicial review
The application for judicial review filed by the applicant on 19 January 2021 contains four grounds of review as follows (without alteration):
1. AAT rejects my safety over the issue of my life being threatened.
2.The decision AAT had an unhealthy impact on myself in a situation where I was in a pandemic and made me scared and under stress.
3.AAT urged me to give evidence of my case involving silent killer or Black magic used by my closest people to threaten me and I have explained not all things I can prove with written paper except death. And such a thing would be easier if I lived and lived with them there (Malaysia).
4.I could not accept the AAT decision on my case which has indirectly given my day-to-day depression and I request that my case be considered properly because before this there have been overlapping decisions.
Grounds one and three
Grounds one and three relevantly provide as follows:
1. AAT rejects my safety over the issue of my life being threatened.
…
3.AAT urged me to give evidence of my case involving silent killer or Black magic used by my closest people to threaten me and I have explained not all things I can prove with written paper except death. And such a thing would be easier if I lived and lived with them there (Malaysia).
Essentially, the applicant here complains that the Tribunal rejected her claims to fear harm in her home country. These grounds fail on a factual level. The decision under review is the Tribunal’s no jurisdiction decision. By that decision, the Tribunal simply identified that it did not have jurisdiction as it had already reviewed the delegate’s decision in this matter. It did not make any findings about the applicant’s protection claims.
To the extent that the applicant is referencing the Tribunal’s first decision, the Court notes that that is not the decision the subject of the review before this Court and, as such, this Court has no jurisdiction to review that decision.
Insofar as the applicant is referencing the delegate’s decision, the Court notes that it has no jurisdiction in relation to the delegate’s decision: ss 476(2) and (4) of the Act.
No arguable case of jurisdictional error arises in relation to grounds one or three.
Grounds two and four
Grounds two and four state:
2.The decision AAT had an unhealthy impact on myself in a situation where I was in a pandemic and made me scared and under stress.
…
4.I could not accept the AAT decision on my case which has indirectly given my day-to-day depression and I request that my case be considered properly because before this there have been overlapping decisions.
The applicant’s claims set out in grounds two and four unfortunately do not point to any allegation of jurisdictional error on the part of the Tribunal.
While negative visa decisions are often stressful for an applicant, this does not point to any arguable case of jurisdictional error on the part of the Tribunal.
Whether the Tribunal was correct to determine that it did not have jurisdiction in this matter
Noting that the applicant was unrepresented and may not have had adequate knowledge and an ability to prepare for, or understand, what was required of her, the Court has remained astute to the possibility of legal error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391.
In this regard, the Court has considered for itself whether the Tribunal was correct in determining that it did not have jurisdiction in this matter.
This Court recently considered a “no jurisdiction” decision made by the Tribunal in similar circumstances in BBD23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 883 (“BBD23”). The analysis provided by this Court in BBD23 applies equally here and is repeated (with minor amendments) below.
Section 411 of the Act provides that a decision to refuse to grant an applicant a protection visa is a “Part 7-reviewable decision” and is thus reviewable by the Tribunal: s 411(1)(c) of the Act.
Section 412 of the Act outlines what is required in order for a valid application for review to be made.
Where a valid application for review is made, s 414 of the Act requires that the Tribunal review that decision. Section 414 of the Act relevantly provides as follows:
414 Tribunal to review Part 7‑reviewable decisions
(1)Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7‑reviewable decision, the Tribunal must review the decision.
(2)The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
Here, a delegate refused to grant the applicant the visa on 1 May 2017 (CB 64-75).
The applicant then made the first Tribunal application on 2 May 2017 (CB 92-93).
On 11 May 2017 (before the Tribunal had made a decision in relation to the first Tribunal application), the applicant made the second Tribunal application (CB 144-145).
On 30 October 2020, the Tribunal, in relation to that first Tribunal application, affirmed the delegate’s decision refusing to grant the applicant the visa (by way of the first Tribunal’s decision) (CB 123-137).
The applicant was notified of the first Tribunal’s decision by letter dated 2 November 2020 (sent to the applicant via email that same day) (CB 121-122).
In the circumstances of this matter, a valid application was made (by the applicant to the Tribunal) for review of the delegate’s decision by way of the first Tribunal application (CB 92-93).
That first Tribunal application was finalised when the Tribunal delivered the Tribunal’s first decision on 30 October 2020 (CB 123-137).
On 4 November 2020, the Tribunal invited the applicant to comment on the validity of the second Tribunal application (CB 154-156).
The Tribunal ultimately found that it did not have jurisdiction to review the delegate’s decision a second time, citing SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164 (“SZBWJ FMCA”). The relevant passage in SZBWJ FMCA as referenced by the Tribunal (at [3] in its reasons) reads as follows:
41.Where the decision of a delegate of the Minister has already been the subject of a valid review by the Refugee Review Tribunal it is no longer an RRT reviewable decision under s 411. Where the Tribunal concludes that it has already discharged its function under the Act to review the Delegate’s decision and a second application for review is not a valid application because the Tribunal no longer has jurisdiction in relation to that decision, there is no jurisdictional error.
The Court also notes comments made by Smith FM in SZEYK v Minister for Immigration & Anor [2008] FMCA 1354 (“SZEYK”) where it is stressed that the Tribunal does not have jurisdiction to review a delegate’s decision twice:
5.In its reasons, the Tribunal referred to well known authority which establishes that it does not have jurisdiction to review a delegate’s decision twice. That line of cases has recently been followed by Cowdroy J in SZCKX v Minister for Immigration & Citizenship [2008] FCA 526 and Moore J in SZBWJ v Minister for Immigration & Citizenship [2008] FCA 1175.
In SZEYK, Smith FM is referencing the reasons of Moore J in SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175 (being the appeal of SZBWJ FMCA referenced above). In that matter, much like in the present case, the applicants sought a further review of a delegate’s decision by the Tribunal.
Relevantly, Justice Moore’s findings provide:
16.In my view, a proper construction of the Act tells against a conclusion that the Tribunal is empowered to again review the delegate’s decision in circumstances where the Tribunal’s original decision was not attended with jurisdictional error. Treating the Tribunal as authorised to undertake a second review of the delegate’s decision would be contrary to the statutory aim of providing a mechanism of review that is “fair, just, economical, informal and quick”: see s 420(1) of the Act…
…
19.In considering the operation of the relevant statutory provisions, I agree with Goldberg J in Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301, where his Honour concluded that the Tribunal did not possess the power to reopen or reconsider a decision that it had previously made. His Honour said (at 317):
When one takes into account the statutory provisions to which I have referred and in particular has regard to the provisions relating to the opportunity to make a further application to the Minister and a further application to the Tribunal, I do not consider it would be proper, in the absence of a clear legislative intention, to imply a power in the Tribunal to reconsider or re‑open a decision.
…
21.However, subsequent authority supports the proposition that the Tribunal was correct in deciding that it did not have jurisdiction to consider the applicants second review application. As the High Court said in Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30]:
It would be inconsistent with [the] scheme [of the Act] and contrary to the ordinary reading of Div 2 of Pt 7 of the Act to treat the decision of the tribunal as provisional in nature. In the situation where the tribunal had, without reviewable error, disposed of an application for review of the decision of the delegate . . ., the Act did not confer upon the tribunal any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances.”
As outlined above, the Tribunal in this matter discharged its function when it made its first decision 30 October 2020 (following the first Tribunal application made by the applicant) (CB 144-145). Having done so, the Tribunal did not have jurisdiction to consider any further review application made in relation to the same delegate’s decision. The second Tribunal application was not a valid application because the Tribunal no longer had jurisdiction in relation to the delegate’s decision: SZBWJ FMCA at [41].
The Court is satisfied that the Tribunal was correct to find that it did not have jurisdiction to conduct a further review in this matter.
No arguable case of jurisdictional error arises in this regard.
Oral submissions
In oral submissions before this Court, the applicant claimed that the Tribunal was “asking her questions” that she was not able to answer. The applicant believes this was because the Tribunal had “mixed up” her matter with a third party (based on differing Tribunal identification numbers).
The applicant here appears to have been confused by the different Tribunal case numbers provided by the Tribunal for each of the review applications filed by her with the Tribunal.
The Court notes that the applicant was issued with Tribunal case number 1709598 in relation to her first Tribunal application (CB 95) and Tribunal case number 1710170 in relation to her second Tribunal application (CB 147).
It is common practice for the Tribunal to issue a Tribunal case number to each new application filed and there is no evidence before this Court to suggest that any of the information included by the Tribunal in its no jurisdiction decision related to any third party.
No arguable case of jurisdictional error arises in this regard.
Conclusion regarding merits of the substantive application
The applicant’s “grounds of review” and oral submissions, assessed at a reasonably impressionistic level, do not identify any arguable case of jurisdictional error on the part of the Tribunal. The Court has also been unable to identify any arguable grounds of error on the part of the Tribunal.
This weighs heavily against granting an extension of time.
CONCLUSION
The lack of a satisfactory explanation for that delay in filing and lack of any arguable case of jurisdictional error on the part of the Tribunal (judged at an impressionistic level only) are such that it is not in the interests of the administration of justice for the Cout to grant an extension of time in this matter.
The application for an extension of time is, accordingly, dismissed.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 22 December 2023
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