BBP23 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 40
•20 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BBP23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 40
File number(s): SYG 684 of 2023 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 20 January 2025 Catchwords: MIGRATION – application for an extension of time in which to seek review of a summary dismissal decision made by a Registrar – relevant considerations – where the substantive application had no reasonable prospects of success – application dismissed Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Migration Act 1958 (Cth)
Cases cited: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34
Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 223
SZASP v Minister for Immigration and Citizenship [2007] FCA 771
SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 17 January 2025 Place: Sydney Applicant In Person Solicitor for the Respondents Mr T Guihot of Sparke Helmore Lawyers ORDERS
SYG 684 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BBP23
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
20 JANUARY 2025
THE COURT ORDERS THAT:
1.The application filed on 18 December 2024 be dismissed.
2.The Registrar’s orders made on 10 December 2024 be confirmed.
3.The applicant pay the Respondent’s costs in the amount of $1,500.00.
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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application, brought pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), for review of a decision made on 10 December 2024 by Registrar Lindsay (Registrar) to summarily dismiss the applicant’s substantive application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth) (GFL Rules), with costs.
By way of that substantive application, the applicant had sought judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). In that decision, the Tribunal determined that it did not have jurisdiction to review a decision of a delegate of the first respondent (delegate) not to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa).[1]
[1] Court Book (CB) 121-122.
BACKGROUND
The background of this matter was outlined within the Minister’s submissions, which I largely adopt and set out below:
(a)The applicant is a male national of China, who arrived in Australia as the holder of a Subclass 600 Visitor visa on 13 May 2017.[2]
(b)On 23 June 2017, the applicant applied for the protection visa at the heart of this review,[3] on the basis of his claims that he feared the Chinese government would harm him due to his political beliefs.[4]
(c)The applicant’s wife was included in the application as a member of the applicant’s family unit, however she did not advance her own protection claims.[5]
(d)On 13 March 2018, the delegate refused to grant the protection visa as they were not satisfied that the applicant was a person to whom Australia owed protection obligations under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act).[6]
(e)On 29 March 2018, the applicant applied to the Tribunal for review of the delegate’s decision (first review application).[7]
(f)On 24 October 2022, the Tribunal dismissed the first review application for non-appearance at a hearing under s 426A(1A)(b) of the Act, as the applicant did not appear before it at the time and date of the scheduled hearing on 21 October 2022. The applicant did not apply for reinstatement of the review within the 14 day period provided, and the Tribunal confirmed the dismissal on 8 November 2022.[8]
(g)On 10 December 2022, the applicant lodged a second application to the Tribunal seeking review of the same delegate’s decision dated 13 March 2018 (second review application).[9]
(h)On 23 February 2023, the Tribunal invited the applicant to comment on the validity of the second review application (invitation to comment).[10] The Tribunal identified that a previous application for review of the same delegate’s decision had been made, and therefore the Tribunal did not have jurisdiction to conduct a review as it had already made a valid decision on 8 November 2022. The applicant did not respond to the invitation to comment.[11]
(i)On 21 March 2023, the Tribunal determined that it did not have jurisdiction in the matter for the above reasons, and the applicant was notified of the Tribunal’s decision on 22 March 2023.[12]
[2] CB 89.
[3] CB 1-65.
[4] CB 63-65.
[5] CB 2.
[6] CB 88-97.
[7] CB 98-99.
[8] CB 100-103.
[9] CB 106-112.
[10] CB 117.
[11] CB 122.
[12] CB 119-122.
On 19 April 2023, the applicant applied to this Court for judicial review of the Tribunal’s decision made in relation to the second review application.
On 10 December 2024, the Registrar dismissed the application pursuant to r 13.13(a) of the GFL Rules, on the basis that the application has no reasonable prospects of success.
On 18 December 2024, the applicant applied for a review of the Registrar’s decision.
The Tribunal’s Decision
In its decision, the Tribunal identified that it had previously made a decision in relation to an application for review of the delegate’s decision on 8 November 2022.[13] The Tribunal observed that where a previous valid application for review of the delegate’s decision had been made, and the Tribunal’s statutory duty had been carried out in relation to that review, the decision is no longer a reviewable decision: see SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164 at [41]. Accordingly, the Tribunal determined it had no jurisdiction to review a delegate’s decision twice: see Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 (Jayasinghe) and SZASP v Minister for Immigration and Citizenship [2007] FCA 771.[14]
[13] CB 122 at [1]-[3].
[14] CB 122 at [3].
PROCEEDINGS BEFORE THIS COURT
By way of an application filed on 19 April 2023, made under s 476 of the Act, the applicant sought review of the Tribunal’s decision. The applicant raised the following two grounds of review (reproduced below without alteration):
1.The Department of Home Affairs was unfairly treated my claims and evidence with wendesbury unreasonableness
2.The Department of Home Affairs was improperly applied the legal provisions of S.65 of Migration Act 1968 properly to assess my case
On 10 December 2024, the matter was summarily dismissed by order of the Registrar, pursuant to r 13.13(a) of the GFL Rules, and the applicant ordered to pay the first respondent’s costs.
LATE FILING OF THE REVIEW APPLICATION
Rule 21.02(1) of the GFL Rules required that the application seeking review of the Registrar’s decision be made within seven days. This did not occur. The review application was made on 18 December 2024, eight days after the Registrar’s decision on 10 December 2024.
The Minister did not oppose the extension of time. In these circumstances, and given the limited period of delay involved, the extension was granted at the hearing.
SUMMARY DISMISSAL
The question of whether the substantive application ought to be summarily dismissed is required to be considered on a de novo basis.
Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides as follows:
143 Summary judgment
…
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section…
Rule 13.13 of the GFL Rules provides:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
In considering an application for summary dismissal, the Court is not required to determine whether or not the Tribunal’s decision is affected by jurisdictional error. Rather, the Court is concerned with whether the case raises a real or genuine dispute that might reasonably be resolved in an applicant’s favour: see AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33] (Judge Given) and the cases cited therein.
MERITS OF THE UNDERLYING APPLICATION
As stated above, the grounds relied upon by the applicant in the substantive application were stated as follows (reproduced below without alteration):
1.The Department of Home Affairs was unfairly treated my claims and evidence with wendesbury unreasonableness
2.The Department of Home Affairs was improperly applied the legal provisions of s.65 of Migration Act 1958 properly to assess my case
The applicant was provided with an opportunity to amend his application and provide written submissions but did not avail himself of that opportunity.
In the application for review of the Registrar’s decision, the applicant sought the following orders (reproduced below without alteration):
1.Minister for Immigration, Citizenship and Multicultural Affairs and Administrative Appeals Tribunal and Federal Circuit and Family Court of Australia was unfairly treated my claims and evidence with wendesbury unreasonableness.
2.Minister for Immigration, Citizenship and Multicultural Affairs and Administrative Appeals Tribunal, the Federal Circuit and Family Court of Australia did not apply the legal provisions of s. 65 of the Migration Act 1958 properly to assess my case, therefore seeking Minister for Immigration, Citizenship and Multicultural Affairs and Administrative Appeals Tribunal, the Federal Circuit and Family Court of Australia to relief the no jurisdiction of 21/03/2023, 10/12/2024 about my case and has jurisdiction on my case
In the affidavit accompanying the application for review of the Registrar’s decision, the applicant raised the following submissions (reproduced below without alteration):
The Department of Home Affairs was unfairly treated my claims and evidence with wendesbury unreasonableness
The Department of Home Affairs and Administrative Appeals Tribunal, the Federal Circuit and Family Court of Australia did not apply the legal provisions of s 65 of the Migration Act 1958 properly to assess my case
As the Minister submits, by virtue of ss 476(2)(a) and (4) of the Act, this Court has no jurisdiction to consider the grounds insofar as they take issue with the delegate’s decision.
Accordingly, the Court has considered the above additional orders sought, and the accompanying statement within the affidavit as directing the original grounds towards the Tribunal decision.
Pursuant to r 21.04(1) of the GFL Rules, a review of an exercise of power by a Registrar is to proceed by way of a hearing de novo. The review is not concerned with identifying errors by the Registrar, but on the basis that the judge is asked to make an order in place of the delegated authority: see Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34 at [3] per Allsop CJ, Markovic and Colvin JJ.
Accordingly, this Court is required to determine whether the applicant has reasonable prospects of success in relation to any of the grounds raised in the judicial review application pursuant to r 13.13(a) of the GFL Rules: see Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 223 at [40] per Deputy Chief Judge Mercuri.
During the hearing before this Court, the applicant was asked whether he wished to further elaborate on his original grounds, to which he replied that he did not.
To the extent that the grounds can be construed as being directed towards the Tribunal’s decision, the Minister submits, and I accept, that the applicant has no prospects of success for the following reasons.
Ground 1
In relation to Ground 1, and the contention that the applicant’s claims and evidence were treated ‘unfairly’, referring to the unreasonableness test from Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, the Minister submits that this is a misunderstanding of the relevant legislative requirements, and fails to engage with the issue of jurisdiction which was before the Tribunal.
The Minister points to SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164 at [41], citing Scarlett FM (as his Honour then was):
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 Minister submits that the Tribunal’s finding that that the application was finally determined and subsequently the Tribunal lacked jurisdiction in this case was the only decision which was open to it. Subsequently, having discharged its mandatory duty under s 414(1) of the Act, there was no further function or act of that the Tribunal was able to perform, referring to Jayasinghe.
The Minister also submits that the Tribunal clearly discharged its procedural fairness obligations when it invited the applicant to comment on the validity of the second review application[15], and subsequently this aspect of ground 1 also fails.
[15] CB at 117.
I agree with the Minister’s submissions and it is apparent that this ground has no prospect of success.
Ground 2
In relation to Ground 2, the Minister submits that the allegation that the Tribunal improperly applied s 65 of the Act, is equally unresponsive to the substance of the Tribunal’s decision and lacks any reasonable prospects of success.
The Minister submits s 65 of the Act relates to the Minister’s power to grant a visa if satisfied of various matters. Further, the Tribunal’s decision does not engage with the merits of the applicant’s case and whether to grant a visa to the applicant. Rather, the Tribunal’s decision simply involved a consideration of whether it had jurisdiction to conduct the review and did not turn on any application of s 65 of the Act. On that basis, this ground does not disclose any error on the Tribunal’s part.
I agree with the Minister’s submissions and, having regard to the above, it is apparent that this ground has no reasonable prospects of success.
Additional matter
During the hearing before the Court, I reminded the Minister of his obligations as a model litigant and asked whether he could otherwise identify any other potential jurisdictional error in this case. By way of response, the Minister submits that no such error could be identified. Having had an opportunity to review the material before the Court, including the Tribunal’s reasons, I am of the view that the material does not disclose any error on the part of the Tribunal.
CONCLUSION
Having regard to the above, the application for review of the Registrar’s decision will be dismissed, with the Registrar’s decision being confirmed.
Costs
At the hearing, the parties were invited to make submissions as to costs. The applicant submits that he lacks confidence in receiving a favourable outcome in this application and made no discernible submissions in relation to costs.
The Minister submits that, should he be successful, he seeks an order for costs fixed in the sum of $1,500.00. The Minister’s submits that this amount is reasonable as it is lower that the applicable scale amount and is less than the costs incurred by the Minister in preparing the matter for hearing.
Having considered the parties’ submissions as to costs, I find that amount sought by the Minister to be reasonable in the circumstances and order that the applicant pay the first respondent’s costs fixed in the amount of $1,500.00.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 20 January 2025
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