Behay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 215

FEDERAL CIRCUIT COURT OF AUSTRALIA

Behay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 215

File number(s):

BRG 319 of 2020

Judgment of:

JUDGE EGAN

Date of judgment:

11 February 2021

Catchwords:

MIGRATION – whether enactment of s. 24Z of Administrative Appeals Tribunal Act 1975 (Cth) abrogated a common law right of an applicant in a migration review application to withdraw their application for review before the Tribunal – absence of clear words in amending legislation to that effect – valid withdrawal of application for review – application dismissed

Legislation:

 Migration Act 1958 (Cth), s 359.

Administrative Appeals Tribunal Act 1974 (Cth), ss 24Z, 42A.

Migration Regulations 1994 (Cth), r 4.14.

Cases cited:

Nolan v Clifford (1904) 1 CLR 429.
Balog v Independent Commission Against Corruption (1990) 93 ALR 469.
Queensland Nickel Management Pty Ltd & Great Barrier Reef Marine Park (No 3) (1992) 28 ALD 368
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Number of paragraphs:

29

Date of last submission/s:

8 February 2021

Date of hearing:

8 February 2021

Place:

Brisbane

Counsel for the Applicant:

Mr Aleksov

Solicitor for the Applicant:

Timpson Immigration Lawyers

Counsel for the First Respondent:

Mr McGlade

Solicitor for the First Respondent:

Sparke Helmore

Second Respondent:

Submitting appearance save as to costs

ORDERS

BRG 319 of 2020

BETWEEN:

ROSALIE DAMASO BEHAY

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISATRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	11 FEBRUARY 2021

IT IS ORDERED THAT:

1.The Originating Application for Review filed on 9 June 2020 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE EGAN

1. On 10 September 2015, the applicant applied for a Partner (Residence) (Class BS) Partner (Sub-class 801) Visa.

2. On 16 October 2019, a delegate of the Minister refused the visa application.  [1]

   [1]           Court Book (CB) p.132 – 167 inclusive.

3. On 18 October 2019, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.

4. On 20 March 2020, the applicant telephoned the office of the Tribunal (Migration & Refugee Division) and advised a person employed there that she wished to withdraw her application for review of the delegate’s decision. At 11.38 am on that day, the Tribunal wrote to the applicant asking that she confirm the withdrawal of her application by completing and returning a form to that effect.

5. In response to the letter sent to her on 20 March 2020 enclosing the withdrawal form, the applicant, at 1.24 pm on that day, returned the duly executed withdrawal form to the Tribunal. [2]  

   [2]           CB p. 177 – 178.

6. On 6 May 2020, the Tribunal wrote to the applicant advising her that it had accepted her withdrawal of her application, and it also advised her that the Tribunal no longer had jurisdiction to review the delegate’s decision.  [3] 

   [3]           CB p. 180

7. On 12 May 2020 at 1.11 pm, the applicant emailed the Tribunal and advised it that she had allegedly made a mistake when withdrawing her application. The applicant asked to continue with her application for review.  [4]

   [4]           CB p. 181.

8. On 12 May 2020 at 5.07 pm, the Tribunal wrote to the applicant to advise her that because the Tribunal had made its decision on 5 May 2020 to accept the withdrawal of her application, it was considered that a decision had been made under the Migration Act1958 (Cth) (‘the Act’) and that the Tribunal had no power to take any further action on review. [5]

   [5]           CB p. 184.

9. Further submissions of the applicant forwarded to the Tribunal were considered, but on 1 June 2020 the applicant was advised by email that the Tribunal member had decided not to re-open the case.

10. On 9 June 2020, the applicant caused an Originating Application for Review to be filed seeking review of the decision of the Tribunal.

    Ground of Review

11. The one ground of review was as follows:

    “1. The Second Respondent failed to determine the review in accordance with Section 348 of the Migration Act 1958 (Cth), and thereby remains seized of jurisdiction. The purported "withdrawal" of the review application by the Applicant was not legally effective to end the obligation of the Second Respondent to review the decision.”

12. It was submitted by Mr Aleksov, Counsel on behalf of the applicant, that an applicant could not withdraw their own application, and that the only way which a Tribunal might end a review application was by making a decision pursuant to the provisions of s. 349 of the Act. Section 349 of the Act relevantly provided as follows:

    “Tribunal Powers on Review of Part 5-reviewable decisions

    (1)The Tribunal may, for the purposes of the review of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

    (2)The Tribunal may:

    (a) affirm the decision; or

    (b)  vary the decision; or

    (c)  if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

    (d)  set the decision aside and substitute a new decision; or

    (e)  if the applicant fails to appear--exercise a power under section 362B in relation to the dismissal or reinstatement of an application.

    (3) If the Tribunal:

    (a)  varies the decision; or

    (b)  sets aside the decision and substitutes a new decision;

    the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

    (4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.”

13. It was argued that because of the enactment of s. 24Z of the Administrative Appeals Act 1975 (Cth) (‘the AAT Act’), s. 42A(1A) of the AAT Act did not apply. Sections 24Z and 42A(1A) relevantly provided as follows:

    “24Z Scope of operation of this Part

    (1)    Except for the provisions specified in subsection (2), this Part does not apply in relation to proceeding in the Migration and Refugee Division.

    Note 1: For the conduct of proceedings in the Migration and Refugee Division, see Parts 5 and 7 of the Migration Act 1958.

    Note 2: Enactments that authorise the making of applications for review to the Tribunal can add to, exclude or modify the operation of this part.

    (2)    The following provisions of this Part apply in relation to a proceeding in the Migration and Refugee Divisions

    (a) section 25;

    (b) section 42.

    …

    42A Discontinuance, dismissal, reinstatement etc. of application

    (1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.”

14. It was further submitted that the effect of the enactment of s. 24Z of the AAT Act was also to abrogate what was conceded as having been, prior to such enactment, a common law right on the part of an applicant to withdraw their visa application. The Court does not accept such submission.

15. Section 24Z of the AAT Act was accepted as having been enacted for the purpose of the consolidation of a number of different Acts of Parliament. The purpose of such enactment, it was submitted, was to centralise administrative decision-making. As to how consolidating Acts of Parliament ought to be interpreted, it has been held that courts will lean against any presumption that such Acts alter the common law. In Nolan v Clifford (1904) 1 CLR 429 at 447, Griffith CJ said as follows:

    “This is described to be an Act to consolidate the Statutes relating to Criminal Law. There is nothing to indicate that the legislature intended to make any substantial alteration in the law. It is entitled an Act to consolidate the Statutes. There is nothing to suggest that they intended to make an important alteration in the common law on a matter materially affecting the liberty of the subject. If, notwithstanding that, the Act did contain provisions which could only bear one construction, we should, as pointed out in another case, be obliged to give effect to the plain words of the Statute; but, primâ facie, there is nothing indicating that this Act was intended to make an important alteration in the common law on a point affecting the liberty of the subject.”

16. It was put to Counsel for the applicant that the effect of his submission was that, notwithstanding a verbal or other expression of intention being made by an applicant to the Tribunal to withdraw their application, the Tribunal would nevertheless be required to review the application and make a considered decision on the basis of the material before it. Counsel agreed with such proposition. It was also conceded by Counsel for the applicant that that could be an onerous exercise, and would necessarily result in the Tribunal being required to spend time dealing with claims that were no longer extant.

17. In Statutory Interpretation in Australia (5^th ed) (D C Pearce & R S Geddes) at 5.22 it was said:

    “[5.22] One of the most frequently cited authorities relating to the presumption against alteration of common law doctrines is the statement of O’Connor J in Potter v Minahan (1908) 7 CLR 277. His Honour, in that case, quoted from the fourth edition of Maxwell on Statutes, p 121. The passage approved by O’Connor J at 304 is as follows:

    It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used”

18. It was accepted that s. 24Z of the AAT Act did not expressly provide, by clear words, that any common law right in existence prior to its enactment would be abrogated.

19. In Balog v Independent Commission Against Corruption (1990) 93 ALR 469 at 477, it was said, per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, as follows:

    “If the legislation admits of a wider interpretation than that which we have given to it (and we do not think that it does), then the narrower construction is nevertheless to be adopted upon the basis that where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred: Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475 at 487; 13 ALR 481. See also Hamilton v Oades (1989) 166 CLR 486 at 494; 85 ALR 1; Potter v Minahan (1908) 7 CLR 277 at 304; Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177; Baker v Campbell (1983) 153 CLR 52 at 123; 49 ALR 385.”

20. The Court finds that it was never the intention of Parliament that an application for review made in the Migration and Refugee Division of the Tribunal could only be finally determined upon the handing down by it of a decision after a full consideration by the Tribunal of all of the material before it in any given review application. Clear words in the body of any amending legislation would have been required for that to be so. In circumstances such as the present, the preferred course for the Court to adopt is for recognition to be given to what was the historical common law position relating to the withdrawal of applications for review made before administrative bodies.  That position was held in Queensland Nickel Management Pty Ltd & Great Barrier Reef Marine Park to be as follows:  [6]

    [6]           (No 3) (1992) 28 ALD 368 at 8 – 9 and 11 per Gray J, Deputy President D P Breen and Member Associate

    “[8] There is a considerable line of authority to the effect that an applicant to a court, tribunal or other decision-maker, is entitled to withdraw the application at any time, in the absence of a legislative provision removing or fettering that right. The Australian authorities are strong, because each was decided in circumstances in which the relevant application had been withdrawn after the decision-maker had indicated what the decision was likely to be. In R v Blackburn; Ex parte Transport Workers’ Union of Australia (1953) 88 CLR 125, a dispute created by service of a log of claims by a union, and noncompliance with that log of claims by a number of employers, was dealt with in a proceeding before a conciliation commissioner, under the Conciliation and Arbitration Act 1904 (Cth). As the High Court of Australia found, at 133, ``The hearing continued at various places for a great number of days …'’. The commissioner published a decision, together with a draft award. He delayed making the award, to enable the parties to make written submissions as to the wording of clauses in it. The union then sent a notice to all of the relevant employers, withdrawing the log of claims. The High Court of Australia held that the union was entitled to a writ of prohibition, to restrain the commissioner from making the award, there being no longer any dispute in settlement of which he could have made it. At 138, the majority of the court regretted, ``that the time and expense involved in the proceedings before the commissioner should have been wasted…'’.

    In Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412, the New South Wales Court of Appeal dealt with a case in which an applicant in the Workers’ Compensation Commission withdrew his application afterevidence and the addresses of counsel on both sides had been completed and the judge who constituted the commission had indicated the nature of the order which he proposed to make. The judge purported to refuse leave to withdraw, and purported to make an award. By a majority, the Court of Appeal held that there was a right to withdraw the application at any time before the commission made its award, and that no leave was required. The commission had erred in law in purporting to refuse leave to withdraw and in making an award. At 422-3, Samuels JA (with whom Reynolds JA concurred) reviewed the English authorities. At 423 his Honour said with respect to the right to withdraw before decision, ``unless in a particular court at a particular time it has been thought right to restrict it, I would regard it as a right which every claimant is entitled to exercise'’.

    (9) Most of the English authorities are similar in effect. R v Hampstead and St Pancras Rent Tribunal; Ex parte Goodman [1951] 1 KB 541 concerned the withdrawal by consent of a claim for determination by a rent tribunal. At 545, Lord Goddard CJ said:

    It seems to me that, unless we find strong words to the contrary in the section, a tribunal can only have jurisdiction so long as an application subsists. I think, therefore, that the tenant may at any time withdraw his application.

    His Lordship expressed the view that an application may be withdrawn at any time before the tribunal gave its decision. In Boal Quay Wharfingers Ltd v King's Lynn Conservancy Board [1971] 1 WLR 1558, an applicant for a licence to employ persons for stevedoring work withdrew its application. Notwithstanding the withdrawal, the decision-maker purported to refuse the application. The Court of Appeal held that the purported refusal was a nullity.

    At 1566, after referring to a provision of the relevant statute, Lord Denning MR said:

    But I think that those words only apply to an application which is still a subsisting application when the time comes for decision. An applicant has a right to withdraw it at any time before the decision is given. If an application is withdrawn, the licensing authority are under no duty, and have no power, to hear or determine the application. They cannot refuse it because there is no subsisting application for them to refuse. There is nothing left of the application. There is no room for a refusal.

    At 1569, Salmon LJ held that the reference in the same statutory provision to an application ``must mean an effective application. An application which has been withdrawn is not, in my view, an effective application'’. His Lordship also recognised the entitlement to withdraw an application at any stage.

    …

    [11] The line of authority in England and Australia, to which we have referred, has been followed on a number of occasions in this tribunal. We refer to Re Eastman and Department of the Treasury (17 August 1984, unreported), at 6–12, Re Stevenson and Commonwealth (1987) 13 ALD 524 at 528–32, Re Tabone and Commonwealth (1988) 15 ALD 787 at 788, Re Storrie and Repatriation Commission (1988) 16 ALD 31 at 32–4, Re Abbott and Repatriation Commission (1988) 16 ALD 704, Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537 at 540, and Re Quonoey and Repatriation Commission (1992) 27 ALD 95 at 96–9. These cases are all based on the proposition that there is nothing in the Administrative Appeals Tribunal Act 1975 to take away the prima facie right which an applicant has to withdraw the application.”

21. Further, it is not without significance that the legislature did not, at the time of the enactment of s. 24Z of the AAT Act, amend those provisions of the Migration Regulations (1994) (Cth) (‘the Regulations’) which dealt with the withdrawal of an application of review before the Tribunal.  [7]

    [7]           See for example r. 4.14 of the Regulations.

22. Having accepted the applicant’s written withdrawal of her application for review before the Tribunal, the Tribunal was functus officio. It had no further power to proceed to hear and determine the applicant’s application for review.

23. The Tribunal was not in error in arriving at its decision.

24. Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

    “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

    …

    [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

1. The Tribunal clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions on the same or similar facts. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:

   “[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

2. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

3. No jurisdictional error has been established on the part of the Tribunal.

4. The Originating Application for Review is without merit and is dismissed.

5. The Court will hear the parties as to costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       11 February 2021

            Professor E K Christie