BFU23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 439
•17 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BFU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 439
File number: SYG 778 of 2023 Judgment of: JUDGE D HUMPHREYS Date of judgment: 17 May 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection Visa – Review of a Registrar’s decision – Whether the Tribunal fairly considered all the Applicant’s claims – Whether the Tribunal fell into jurisdictional error – no jurisdictional error is made out –application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 65, 426A, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.02, 21.04
Migration Regulations 1994 (Cth
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor (1997) 76 FCR 301
LPDT v Minister for Immigration, Citizenship, Migrants Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
SZASP v Minister for Immigration and Border Protection [2007] FCA 771
SZBWJ v Minister for Immigration and Border Protection [2008] FMCA 164
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submission/s: 10 May 2024 Date of hearing: 10 May 2024 Place: Parramatta Solicitor for the Applicant: Appearing in Person Solicitor for the Respondents: Mills Oakley ORDERS
SYG 778 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BFU23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
17 MAY 2024
THE COURT ORDERS THAT:
1.The Application for Review in a Case filed by the applicant is dismissed.
2.The Applicant is to pay the First Respondent’s costs, fixed in the amount of $1, 200.00.
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 D HUMPHREYS
INTRODUCTION
This is a review of a Registrar’s decision enlivened by Division 21.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”), whereby a Registrar of this Court summarily dismissed the application.
The Application for Review of a Registrar’s (“Application for Review”) decision was filed outside of the 7-day timeframe prescribed by r 21.02 of the Rules, for which the applicant seeks an extension of time. Accordingly, leave of the Court will be required to file the Application for Review.
BACKGROUND
The applicant is a citizen of the People’s Republic of China (“China”). The applicant first arrived in Australia on 5 September 2019 on a Visitor visa.
On 3 November 2019, the applicant applied for a Protection visa, claiming that she feared harm in China, due to her involvement in an allegedly fraudulent financial program.
On 4 May 2022, the Department of Home Affairs (“the Department”) invited the applicant to provide further information and evidence in relation to her claims within 28 days. The applicant failed to respond to the invitation, nor did she contact the Department.
On 22 June 2022, a delegate of the Minister (“the delegate”) refused the applicant her protection visa. The delegate was not satisfied that the claims made were genuine as they lacked detail and evidence. The delegate found that the applicant was not someone whom attracted protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).
On 3 July 2022, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the delegate’s decision.
On 8 November 2022, the applicant was invited to attend an in-person hearing scheduled for 28 November 2022. The applicant did not respond to the Tribunal and failed to attend the hearing.
On 28 November 2022, the Tribunal pursuant to s 426A(1A)(b) of the Act dismissed the application without further consideration of the information provided. The applicant was notified of her non-appearance and informed she could apply for reinstatement by 12 December 2022.
On 8 December 2022, the applicant appointed a Migration Agent from Joysun Migration as her representative and authorised recipient. In an email to the Department, the applicant indicated that the Migration Agent was “instructed to inform AAT that [the applicant] requests AAT to reinstate her application”.
On 13 December 2022, the Tribunal refused to reinstate the application because the applicant’s request for reinstatement did not set out the reason for her absence at the hearing, nor did the applicant provide any evidence or submissions to be taken into account with regard to her circumstances to support a reinstatement.
On 10 January 2023, the applicant applied to the Tribunal for a review of the same delegate’s decision for the second time.
On 13 February 2023, the applicant was invited to comment on the validity of her second Application for Review by 27 February 2023. The applicant was informed that the Tribunal had already previously carried out its statutory duty by reviewing the delegate’s decision. Accordingly, the Tribunal reiterated that the decision was not a reviewable decision. The applicant did not respond to the Department’s correspondence.
On 3 April 2023, the Tribunal found that it lacked jurisdiction to review the delegate’s decision. The applicant sought judicial review of this decision in this Court on 8 May 2023. On 11 May 2023, the applicant was informed by the first respondent that in their view her application “lacked reasonable prospects of success”.
On 26 February 2024, a Registrar of this Court summarily dismissed the application in accordance with r 13.13(a) of the Rules, as the application had no reasonable prospects of success. The applicant now seeks review of the Registrar’s decision.
For the reasons that follow, the application should be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
At paragraph [3] of the decision record, the Tribunal noted this Application for Review related to the same decision which was previously lodged in relation to which the Tribunal had already made a decision on 13 December 2022. The Tribunal stated that it had already fulfilled its statutory duty to review the decision under the Act, thereby rendering it a non-reviewable decision (see: SZBWJ v Minister for Immigration and Border Protection [2008] FMCA 164 at [41]). That is, a Tribunal does not have jurisdiction to review a delegate’s decision twice; (see: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v Minister for Immigration and Border Protection [2007] FCA 771).
At paragraph [4] of the record, the Tribunal stated the following before concluding that it did not have jurisdiction in the matter:
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.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon by the applicant are contained in an Affidavit dated 8 May 2023. They are as follows:
1.The Department of Home Affairs and Administrative Appeals Tribunal…unfairly treated my claims and evidence with wendesbury (sic) unreasonableness.
2.The Department of Home Affairs and Administrative Appeals…improperly applied the legal provisions: s65 of Migration Act, part 602 of Schedule 2, cl 602.212(6), cl 602,216 of the Migration Regulations 1994 properly assess my case
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. She was assisted by an interpreter. The applicant sought the assistance of her ‘boyfriend’ in answering any questions that the Court put to her. In the interests of fairness, the applicant’s boyfriend was allowed to sit next to the applicant and act as a McKenzie friend.
The Court carefully outlined the task it was undertaking, being judicial review as compared to merits review. The Court also explained the procedure by which the hearing would be undertaken.
When asked what she wanted to say to the Court she replied, “I have nothing to say”. When asked why she filed the Application for Review by the Court out of time, she stated, “I did not have any money and had no-one to help me.” At the conclusion of the respondent’s submissions, the applicant was again asked if there was anything she wanted to say to the Court. She responded, “no”.
The applicant’s submissions and orders sought outlined in her Application for Review of the Registrars decision stated the following:
(a)That the Minister for Immigration, Citizenship and Multicultural Affairs (“the Minister”) and the AAT “unfairly treated” her claims and evidence “with wednesbury (sic) unreasonableness”;
(b)That the Minister, the AAT and the Federal Circuit and Family Court of Australia (“FCFCOA”) failed to apply s 65 of the Act “properly” to assess her case. Therefore, the applicant seeks that the Minister, AAT and FCFCOA “relief the no jurisdiction decision” to decide that the Tribunal did have jurisdiction; and
(c)The Applicant seeks an extension of time to complete the review process.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submitted that ground one of the applicant’s case expresses grievance over the delegate’s decision, which the Court has no jurisdiction to review because it is a primary decision pursuant to s 476(2) of the Act. Neither does the Court have the power to review the merits of the applicant’s visa. It was submitted that the applicant’s first ground has no reasonable prospects of success.
In relation to ground two, the first respondent characterised the applicant’s claims as “misconceived”. It was asserted that “to the extent that” the ground is “directed at the delegate’s decision, it should fail as the Court cannot review a primary decision and the claim has no reasonable prospects of success.” The first respondent submitted:
In circumstances where the Tribunal lacked jurisdiction, no review under Part 7 of the Act was undertaken and the Tribunal did not purport to consider whether the criteria for the grant of the Protection visa was satisfied. Further, part 602 of the Regulations relates to Medical Treatment visas and is irrelevant to the Tribunal’s finding that it lacked jurisdiction to review the delegate’s refusal to grant the applicant a Protection visa.
Accordingly, the applicant’s claims have no reasonable prospects of success and should be summarily dismissed with costs.
CONSIDERATION
Pursuant to r 21.04(1) of the Rules, this review of the Registrar’s decision was heard de novo, or afresh.
The applicant’s stated grounds of judicial review (insofar as they may qualify as grounds of review), are misconceived for the following reasons. Ground one seeks a review of the delegate’s decision.
The High Court relatively in LPDT v Minister for Immigration, Citizenship, Migrants Services and Multicultural Affairs [2024] HCA 12 at [15] and [29] restated the boundaries of judicial review and merits review, and the role of the Court in such an exercise:
[15]…Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained.
…
[29]…Both of these findings involved the Full Court making assumptions about how the Tribunal would have undertaken the weighing exercise of the matters in para 8.1.1(1). Such approaches should not be adopted. A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.
Additionally, in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
Nor can it reconstruct the decision-making process of the delegate or engage in assessing the reasons of the decisions made. To undertake a review of the delegate’s decision, as the applicant has requested, would be transgressing the boundaries of judicial review, and slipping into merits review, which is an exercise this Court simply cannot undertake as per the confines of s 476(2) of the Act. That is, the findings made were open to the Tribunal for the reasons it gave. Ground one rises no higher than an invitation to engage in impermissible merits review. Ground one has no merit.
Ground two alleges that s 65 of the Act was “improperly applied”. This reading cannot be sustained because again, it is simply a challenge to the delegate’s decision. The contention asserted in relation to Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) are unrelated to the Tribunal’s decision to refuse the applicant a protection visa.
In relation to the finding by the Tribunal relating to a second review of the delegate’s decision, the following stated in SZASP v Minister for Immigration and Citizenship [2007] FCA 771 at [4], is pertinent:
The Tribunal's conclusion that it no longer had jurisdiction to review the delegate's decision, having already discharged its functions under the Act to review the delegate's decision, was correct.
Similarly, in the preceding authority of Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343, the Court stated at [30]:
It would be inconsistent with that scheme 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 made on 11 October 1995, the Act did not confer upon the tribunal any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances.
Additionally, in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (“Bhardwaj”) at [7], the following was stated:
In Chandler v Alberta Association of Architects Sopinka J, speaking for the majority in the Supreme Court of Canada, pointed out that, as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances.
Prior to Bhardwaj, the Court in Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor (1997) 76 FCR 301 noted:
(i) For the purposes of s 475(1)(b) of the Migration Act 1958 (Cth) (the Act), the manner in which Pt 8 of the Migration Act Reform Act 1992 came to be included in the Act, and the legislative policy which underlies it, suggests that the only decisions of the tribunal which are to be judicially-reviewable were those decisions which dealt with and determined substantive applications by applicants in a final way, and not decisions of a procedural nature.
(ii) The Refugee Review Tribunal does not have the power to reopen a final decision on a review determining the substantive application.
(iii) The doctrine of “functus officio” is a description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function. The effect of the application of the doctrine is that once the statutory function is performed there is no further function or act for the person authorised under the statute to perform.
The law on disallowing a Tribunal to review a delegate’s decision a second time is well-established. The Court is bound by the above authorities.
The Court is satisfied that the Tribunal properly dealt with the applicant’s claims and fulfilled its statutory duty by reviewing the delegate’s decision the first time. The Tribunal was entitled to act in the manner it did initially when the applicant failed to appear before the Tribunal at the scheduled hearing and failed to seek a reinstatement.
The Tribunal was correct to find that its jurisdiction had been exhausted and it could not consider a second Application for Review. No jurisdictional error is apparent.
The Tribunal did not err by stating that it lacked jurisdiction in relation to the second Application for Review.
SHOULD AN EXTENSION OF TIME BE GRANTED?
A decision was made by the Registrar on 26 February 2024 to summarily dismiss the matter. The applicant’s Application for Review was received on 14 April 2024, outside of the 7-day timeframe permitted by r 21.02 of the Rules. This is a delay of slightly more than one month. The applicant attributed the time delay to her inability to file due to financial constraints.
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719, the following matters were held to be relevant as to whether an extension of time should be granted:
(a)the extent of the delay;
(b)the explanation for the delay;
(c)prejudice to the respondent due to the delay; and
(d)the merits of the proposed application.
The Court notes that the respondent has conceded that no prejudice flows to the respondent other than as to costs by the delay in filing.
While the Court appreciates the applicant’s ability to file on time may have been impacted by her financial position and that the delay may be moderate, it does not preclude the Court from also recognising that her application is without merit and bears no reasonable prospects of success. Thus, with reference to section (d) of the criteria set out above, the Court is not satisfied that the merits of the applicant’s proposed application warrant an extension of time.
The Court is of the view that the applicant’s proceeding has no reasonable prospects of success. That is, there is no “genuine dispute” which arises as a result of these proceedings that can possibly warrant a decision in the applicant’s favour.
CONCLUSION
As none of the grounds of judicial review have merit and the Application for Review was filed out of time, the Court declines to grant an extension of time to file the application and the matter is dismissed.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 17 May 2024
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