ATB16 v Minister for Immigration

[2017] FCCA 2306

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATB16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2306

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal that it had no jurisdiction – application dismissed. 

Legislation:

Migration Act 1958 (Cth), ss.412, 438

Cases cited:

ASZ16 v Minister for Immigration and Border Protection [2017] FCCA 1617
AVO15 v Minister for Immigration and Border Protection [2017] FCA 566
BEG15 v Minister for Immigration and Border Protection (2016) 315 FLR 196; [2016] FCCA 2778
Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081
SZAQW v Minister for Immigration and Multicultural Affairs [2006] FCA 1332
SZASP v Minister for Immigration and Citizenship [2007] FCA 771

Applicant: ATB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 760 of 2016

Judgment of: Judge Barnes

Hearing date: 15 September 2017

Delivered at: Sydney

Delivered on: 15 September 2017

REPRESENTATION

Applicant: In Person

Counsel for the Respondents: Ms Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 760 of 2016

ATB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 March 2016.  The Tribunal found that it had no jurisdiction to review a decision of a delegate in circumstances where the Applicant had not identified a primary decision for review in the review application form.  According to the Tribunal, departmental records indicated that the most recent and only decision to refuse to grant a protection visa to the Applicant that was recorded on file was a decision of a delegate made on 4 March 2015.  However the Applicant had previously sought review of this decision by the Tribunal and the Tribunal had affirmed the delegate’s decision on 28 October 2015.

2. The Tribunal found that as it had received a valid application for review of a reviewable decision and had carried out its statutory duty to review the decision under the Migration Act1958 (Cth) (the Act) the decision was no longer a reviewable decision. It stated that it had no jurisdiction to review a delegate’s decision twice (see SZASP v Minister for Immigration and Citizenship [2007] FCA 771) and that accordingly it no longer had jurisdiction to review the delegate’s decision of 4 March 2015.

3. The Applicant sought review by application filed in this court on 1 April 2016.  His application contains three generally expressed and unparticularised grounds.  When given the opportunity to make submissions today addressing the grounds or otherwise explaining his concern with the Tribunal decision and procedures, the Applicant had nothing to add to the grounds, which are that the Tribunal “made a mistake about the law”, that it “did not make a review of [his] application” and that it “didn’t do the duty required by the law”. 

4. To consider these grounds and the Tribunal decision, it is necessary to refer briefly to the background to these proceedings.  Consistent with what the Tribunal stated, the material in the Courtbook reveals that the Applicant, who arrived in Australia in 2012, applied for a protection visa in July 2014.  He was invited to, but did not attend, an interview with the delegate.  On 4 March 2015, the delegate refused his application for a protection visa. 

5. On 27 March 2015 the Applicant applied to the Tribunal (within the time prescribed under the Act and the Migration Regulations 1994 (Cth)) for review of the delegate’s decision of 4 March 2015. The Tribunal invited him to a hearing. He did not attend. On 28 October 2015 the Tribunal affirmed the delegate’s decision.

6. On 25 November 2015, the Applicant lodged the application for review with the Tribunal that is the subject of the decision of 18 March 2016.  He did not identify or attach a copy of any decision of which he was seeking review.  Rather he stated that he “did not receive any letter for interview and attend a Hearing” and “So i miss to attend a Hearing” (errors in original). 

7. The Tribunal wrote to the Applicant on 26 November 2015 acknowledging receipt of the application, but noting that the validity of his application had not been assessed and that the Tribunal could only review a decision if a valid application for review was being made and that he would be informed if it appeared the application was not valid.  He was given the opportunity to provide material or written arguments for the Tribunal to consider.  There is no evidence that he did so.  

8. On 18 March 2016 the Tribunal decided that it had no jurisdiction to determine the application.

9. The grounds in the application for review are not made out.  Insofar as it is contended that the Tribunal made a mistake about the law, the evidence is to the contrary.  It is clear that the Tribunal had no jurisdiction.  First, an earlier Tribunal had already reviewed the delegate’s decision (and see SZASP at [4] and cases cited therein). There is no suggestion that there was any other delegate’s decision. Secondly, and in any event, insofar as this was an application to review the delegate’s decision made on 4 March 2015, the application was not made until 25 November 2015 and hence was not made within the time provided for in s.412(1)(b) of the Act (see SZAQW v Minister for Immigration and Multicultural Affairs [2006] FCA 1332).

10. It is the case that the Tribunal did not “review” the delegate’s decision, but as it had no jurisdiction, it was not open to it to again review the decision of the delegate to refuse to grant the Applicant a protection visa.  There was no other delegate’s decision identified by the Applicant. 

11. It has not been established that the Tribunal failed to carry out any duty required by law. 

12. In addition to the grounds relied on by the Applicant, the First Respondent as a model litigant drew to the attention of the Court the fact that there was a certificate under s.438 of the Act and addressed the possibility of error of the kind identified in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183.

13. On 13 January 2016, after the second application to the Tribunal, the Department issued a certificate to the Tribunal purporting to be made under s.438(1)(a) of the Act in relation to two internal documents. Evidence of the certificate and the documents to which it purported to relate has been admitted in these proceedings as annexures to the affidavit of Thomas Shaw affirmed on 31 July 2017.

14. The first of these documents is entitled “Identification Test: Protection Visa Applicants” and contains application and identification test details.  The second is entitled “Protection Visa Application Validity Check”.  Again, it is a printed form which has been completed and includes a document described as “Associated Bridging Visa” relating to the Applicant’s eligibility for a bridging visa. 

15. It is not in dispute that neither the certificate nor such documents were brought to the attention of the Applicant by the Tribunal.

16. As submitted for the First Respondent, the certificate which purports to be under s.438(1)(a) of the Act is probably invalid. However it is not necessary for me to determine this, having regard to the documents which are the subject of the certificate.

17. In this case there can be no doubt that the documents the subject of the certificate were of no potential relevance to the Tribunal’s adverse conclusion that it had no jurisdiction based on the fact of the earlier review of the delegate’s decision..  This is not a case in which there is a possibility that the documents the subject of the certificate might have affected the Tribunal’s decision such that there would have been a failure to accord procedural fairness arising from the Tribunal’s failure to disclose the existence of the certificate or the nature of the documents to the Applicant (cf Singh at [16]-[18] and [40] and see MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081, AVO15 v Minister for Immigration and Border Protection [2017] FCA 566, and BEG15 v Minister for Immigration and Border Protection (2016) 315 FLR 196; [2016] FCCA 2778). The reasoning in ASZ16 v Minister for Immigration and Border Protection [2017] FCCA 1617 at [18]-[20] is also apposite in this case.

18. I note, for the sake of completeness, that there is nothing in these documents which would in any way suggest that there was a decision of a delegate other than the 4 March 2015 decision of which the Applicant might theoretically have been seeking review.  

19. No jurisdictional error has been established.  Accordingly, the application must be dismissed.

20. The Applicant has been unsuccessful.  It is appropriate that he meet the Minister’s costs.  In the particular circumstances of this case, I consider that the scale amount is appropriate.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 21 September 2017