BIX18 v Minister for Immigration
[2020] FCCA 505
•2 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIX18 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 505 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – review application by the principal applicants incorrectly found to be lodged out of time but claims by a child applicant accepted for review – child’s claims dependent on those of the adult applicants which were not separately considered – whether the Tribunal misconstrued regulation 2.08 of the Migration Regulations 1994 (Cth) or whether the Tribunal decision wholly invalidated by jurisdictional error considered – error by the Tribunal as to its jurisdiction invalidated the decision. |
| Legislation: Migration Act 1958 (Cth), ss.36, 52, 65, 494B |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 |
| First Applicant: | BIX18 |
| Second Applicant: | BIY18 |
| Third Applicant: | BIZ18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 743 of 2018 |
| Judgment of: | Judge Driver |
| Hearing dates: | 23 September 2019, 25 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Prince SC |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Ms C Winnett |
| Solicitors for the Respondents: | Minter Ellison |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 743 of 2018
| BIX18 |
First Applicant
| BIY18 |
Second Applicant
| BIZ18 |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 February 2018. In relation to the first two applicants, the Tribunal decided that it did not have jurisdiction because they had not lodged their review applications within time. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the third applicant a protection visa.
As will appear, this judgment relates only to the decision insofar as it applies to the third applicant.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 19 September 2019.
The first and second applicants are citizens of Colombia.[1] They arrived in Australia on 14 January 2013 as the holders of student visas.[2] On 10 November 2014, they lodged applications for protection visas.[3] Their application forms listed the first applicant as the primary applicant;[4] included an application for the second applicant as a member of his wife’s family unit, who did not have his own claims for protection;[5] and disclosed that the first applicant was pregnant and expecting a baby girl.[6]
[1] Court Book (CB) 272 at [1]
[2] CB 272 decision at [2]
[3] CB 272 at [3]; CB 1
[4] CB 1, 12
[5] CB 29
[6] CB 22
On 7 December 2014, the first applicant gave birth to the third applicant in Australia.[7]
[7] CB 272 at [4]
On 7 and 8 December 2014 respectively, the first and second applicants advised the Minister’s Department of the first applicant’s late stage of pregnancy and then the third applicant’s arrival.[8]
[8] CB 274 at [20]; CB 210-212
First delegate’s decisions
On 17 December 2015, a delegate of the Minister made decisions refusing to grant visas to the first and second applicants.[9] The decision record stated that the applicants were the first applicant (the principal applicant) and the second applicant, a member of his wife’s family unit.[10] It did not refer to the third applicant at any point.
[9] First Delegate’s Decision - CB 98
[10] CB 98
The Minister’s Department posted the first delegate’s decisions to the first applicant by letter dated 17 December 2015.[11] That letter (Notification Letter)[12] was addressed to the first applicant and contained the decision record as an attachment.[13] The Minister has adduced further evidence of the circumstances of that notification in these proceedings.[14]
[11] CB 273 at [16], CB 275 at [26]; CB 94
[12] CB 94
[13] CB 98-109
[14] affidavit of Usipua Talele Soliola sworn 29 May 2018
On 16 August 2016, the first and second applicants submitted a further Form 866B and Form 866C that articulated further protection claims specific to the third applicant.[15]
[15] CB 125, 135 at [6]
Second delegate’s decision
On 11 January 2017, a delegate of the Minister made a decision (second delegate’s decision) refusing to grant a visa to the third applicant.[16] That decision relevantly stated that the third applicant was the applicant for the visa; her parents had applied for protection visas in November 2014; and, by operation of regulation 2.08 of the Migration Regulations 1994 (Cth) (Regulations), she was taken to have made applications for visas of the same class as her parents at the time she was born.[17] In determining the third applicant’s claims for protection, the delegate referred to information in her parents’ application forms dated 10 November 2014, and in the additional application forms dated 16 August 2016.[18]
[16] CB 175
[17] CB 175-176
[18] CB 176-178
Review by the Tribunal
On 18 January 2017, the applicants applied to the Tribunal for review of the first delegate’s decision and second delegate’s decision.[19] The applicants appeared before the Tribunal at a hearing of their application on 25 August 2017, assisted by a Spanish interpreter.[20] On 6 September 2017, by email from her legal representative, the first applicant sent the Tribunal a post-hearing submission and further supporting documents.[21]
[19] CB 185-187
[20] CB 254-256
[21] CB 257-264
On 16 February 2018, the Tribunal determined the applicants’ review applications by concluding that it had no jurisdiction in respect of the first and second applicants, and that the second delegate’s decision in respect of the third applicant should be affirmed.[22] The key aspects of its reasoning relevant to these proceedings are summarised below.
[22] CB 273 at [13]
Operation of regulation 2.08
Before the Tribunal, the applicants contended that the decisions of both delegates were invalid because the delegates failed to deal with all three applicants as having one “combined application”, contrary to regulation 2.08 of the Regulations and s.65 of the Migration Act 1958 (Cth) (Migration Act).[23] In their submission, regulation 2.08 required the making of one decision dealing with all three applicants.[24] Regulation 2.08 provides as follows:
2.08 Application by newborn child
(1) If:
(a)a non-citizen applies for a visa; and
(b)after the application is made, but before it is decided, a child, other than a contributory parent newborn child, is born to the non-citizen;
[23] CB 273 at [17]
[24] CB 273 at [17]
then
(c)the child is taken to have applied for a visa of the same class at the time he or she was born; and
(d)the child’s application is taken to be combined with the non-citizen’s application.
(2)Despite any provision in Schedule 2, a child referred to in subregulation (1):
(a)must satisfy the criteria to be satisfied at the time of decision; and
(b)at the time of decision must satisfy a criterion (if any) applicable at the time of application that an applicant must be sponsored, nominated or proposed.
Note: Regulations 2.07AL and 2.08AA apply in relation to an application by a contributory parent newborn child.
The Tribunal rejected the applicants’ argument at [18]-[19]. It accepted that, pursuant to regulation 2.08(1)(c)-(d), the third applicant was taken to have applied for a visa of the same class as her parents on 7 December 2014 (her date of birth), and that her application was taken to have been combined with each of her parents’ applications on that date.[25] However, it was not satisfied that s.65 of the Migration Act, regulation 2.08 of the Regulations or any other provision “require a delegate to make a single decision in relation to all of the applicants in a combined primary application”.[26] It considered that regulation 4.12(2) of the Regulations provided support for the contrary proposition.[27] By permitting applicants who have combined their primary applications (eg pursuant to regulation 2.08) to combine their applications for review in the Tribunal, regulation 4.12(2) envisaged that:[28]
where multiple applicants have combined their applications, the Minister is not required to make a single decision relating to all of them, but may indeed make more than one decision addressing the applicants individually.
[25] CB 272 at [4], CB 274 at [18]
[26] CB 274 at [19]
[27] CB 274 at [19]
[28] CB 274 at [19]
The fact that the Minister’s Department was aware of the third applicant’s birth, and that the first delegate overlooked that information, did not change the Tribunal’s analysis that the delegates were “permitted to make more than one valid decision in respect of the individual applicants”.[29]
[29] CB 274 at [20]-[22]
Notification of the first and second applicants
The Tribunal found that the first and second applicants’ applications for review were not made within the period prescribed by regulation 4.31(2) of the Regulations, namely, 28 days after notification of the first delegate’s decisions.[30] It reasoned that:
a)the Notification Letter was sent to the first applicant (and, by the deeming provision in s.52(3C) of the Migration Act, to the second applicant) by post on 17 December 2015;
b)the notification met the requirements of s.494B(4) of the Migration Act, as it was sent by post to the last address that the first and second applicants had provided for the purpose of receiving documents; the first and second applicants were taken to have been notified of the decision by 30 December 2015; the last day for lodging their applications for review was therefore 26 January 2016; and
c)those applicants did not submit their review application to the Tribunal until 18 January 2017.[31] On this basis, the Tribunal concluded that it had no jurisdiction in respect of the first and second applicants’ applications for review.[32]
[30] CB 275 at [27]
[31] CB 273 at [16], CB 275 at [25]-[27]
[32] CB 273 at [15]-[16], CB 275 at [28]
Determination of the third applicant’s application
The Tribunal went on to consider and determine the third applicant’s application. It observed that the protection claims made on her behalf were those contained in her parents’ application forms dated 10 November 2014, in the additional application forms dated 16 August 2016, and in the further oral and written material the Tribunal had received during the course of the review.[33] Those claims were essentially that: [34]
a)members of a violent Colombian gang had threatened to kill all members of her family (mainly targeting her mother);
b)she would suffer if her mother or other family members were killed; and
c)that her education, physical and mental wellbeing would suffer if she returned to Colombia due to the civil unrest and violence in that country.
[33] CB 275 at [31]
[34] CB 275 at [31]
The Tribunal emphasised that the circumstances of the third applicant’s parents formed an “essential part” of her claims, and that it had therefore considered those circumstances in detail.[35]
[35] CB 276 at [32], CB 278 at [45]
The Tribunal comprehensively analysed the material before it, including oral and documentary evidence provided by the child’s parents and country information.[36] It did not believe the claim that the first applicant had been targeted by a criminal organisation, or that any criminals in Colombia had an interest in the third applicant or her parents.[37] For that reason, it found there was no real chance of the third applicant being subject to serious harm amounting to persecution for any reason associated with her mother’s alleged conflict with a gang.[38] Nor did it accept that Colombia’s security and living conditions could give rise to a fear of harm for a Convention reason.[39] It concluded that the third applicant was not a person in respect of whom Australia had protection obligations under ss.36(2)(a) or 36(2)(aa) of the Migration Act.[40]
[36] CB 276 at [39], CB 278-286 at [48]-[82]
[37] CB 284-285 at [78]-[79], CB 286 at [84]
[38] CB 286 at [84], CB 286-287 at [86]-[87]
[39] CB 287 at [88]-[91]
[40] CB 287 at [93], CB 285 at [94]-[98], CB 290 at [106]-[107]
The current proceedings
These proceedings began with a show cause application filed on 20 March 2018. The applicants ultimately relied upon a further amended application filed on 9 December 2019. The grounds in that application as amended are:
1. The AAT fell into jurisdictional error by misconstruing Regulation 2.08 of the Migration Regulations.
Particulars
a.On 10 November 2014 the first and second applicants lodged a protection visa application;
b.The first applicant was the primary applicant as she made claims for protection;
c.The second applicant was included as a member of the first applicant's family unit;
d.The first applicant noted on the protection visa application form that she was pregnant;
e.On 7 December 2014 the third applicant was born and by the operation of law joined to the first applicant’s protection visa application as a member of her family unit;
f.The department gave all three applicants the same file number;
g.At [ 4], [19] and [22] the AA T fell into jurisdictional error in finding that the applicants had individual applications and the third applicant had two individual application, instead of one combined application and that the Minister’s delegate could make more than one valid decision for the applicants; and
h. The AA T fell into jurisdictional error in failing to apply the requirements of regulation 2.08(1)(c) and (d) that the child's application be combined with the non-citizen's application and thereby failed to find that the decisions of 17 December 2015 and 11 January 2017 to be invalid.
2. The Tribunal fell into jurisdictional error in concluding that the review application was out of time and that it had no jurisdiction to consider the review application (see: DFQ17 v Minister for Immigration [2019] FCAFC 64).
Particulars
a. The department's notification of refusal of the protection visa to the first and second applicants dated 17 December 2015 did not state the exact date clearly the prescribed review period the first and second applicants had to make an application to the Tribunal by to be in time;
b. The requirement in s66(2) of the Migration Act 1958 (Cth) that a notification of a visa refusal must state the time in which the application for review may be made should be interpreted as requiring the notification must clearly convey the period review may be sought,
c. As the notification did not clearly state the prescribed review period to make an application to the Tribunal, the notification failed to comply with s.66(2) of the Act and time has not yet commenced to run.
3.The Tribunal fell into jurisdictional error in failing to find that the applicants had not be validly notified of the department's refusal decision dated 17 December 2015 in accordance with the s.494B Act.
Particulars
a. The applicants informed the respondents that they did not receive the department’s refusal notification sent by registered post ID: 51006923613017;
b. At page 43 of the affidavit of Liam Michael Dennis sworn on 21 October 2019 a copy of the envelope of registered post ID: 51006923613017 that contained the department’s refusal decision dated 17 December 2014, was returned to the department on 22 December 2015 noting “Incorrect address”; and
c. The address to which the notice of the Delegate’s decision was sent not the correct address of the applicants;
d. The address to which the notice of the Delegate's decision was sent was not the last address for service provided to the Minister by the recipient for the purposes of receiving documents;
e. The applicants were not validly notified of the refusal decision dated 17 December 2019, therefore the time limit for applying for review has not yet commenced.
The hearing of this matter began on 23 September 2019. At that time I granted the applicants leave to rely upon the then proposed further amended application and to file additional evidence and submissions. The hearing was adjourned to 25 February 2020. It was apparent at that time that there was an issue of substance concerning the notification of the delegate’s decision in respect of the first two applicants.
On 30 January 2020 I made the following orders by consent:
1. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 16 February 2018 (AAT case number 1700892) in respect of the first and second applicants only.
2. A writ of mandamus issue directed to the second respondent requiring it to determine the application, dated 18 January 2017, made to it for review of the decision of a delegate of the first respondent dated 17 December 2015 according to law, insofar as that application pertains to the first and second applicants.
3. Costs be reserved.
THE COURT NOTES, BY CONSENT, THAT:
The first respondent concedes that the decision of the second respondent (the Tribunal) is affected by jurisdictional error in respect of the first and second applicants only. The Tribunal failed to find that the first and second applicants had not been validly notified of the first delegate's notification of refusal dated 17 December 2015, 'at the last address for service provided to the Minister' for the purposes of paragraph 494B(4)(c)(i) of the Migration Act 1958 (Cth). The email of 21 July 2016 from the first respondent's Department to the second applicant by email, stated that the timeframe for review to the Tribunal had ended. Accordingly, the Tribunal fell into jurisdictional error when it found that the first and second applicants were validly notified of the first delegate's decision dated 17 December 2015, and when it found that it did not have jurisdiction to review that decision.
(emphasis added)
When the hearing resumed on 25 February 2020 I stayed those orders pending resolution of the case in relation to the third applicant. For present purposes, in addition to the court book filed on 9 April 2018. I have before me as evidence the affidavit of Liam Michael Dennis made on 21 October 2019.[41] Both the applicants and the Minister made further written and oral submissions in relation to the position of the third applicant following the consent orders made on 30 January 2020.
Consideration
[41] Exhibit A1; this was not read by the Minister but was tendered by the applicants
Applicants’ contentions
The third applicant submits that the main factual finding of the Tribunal was based on its finding that the first and second applicants were validly notified of the Minister’s Department's refusal decision of 17 December 2015. Therefore, the main factual finding underpinning the finding not to grant a protection visa to the third applicant was incorrect. Consequently, the third applicant submits that the incorrect factual finding in the relation to the first and second applicants has caused the Tribunal not to exercise its jurisdiction in determining the review application of the third applicant and the Tribunal fell into jurisdictional error.
The third applicant is a five year old child who was deemed by the operation of law to be joined to her parents' combined protection visa application as a member of the first applicant's family unit. The third applicant submits that the Migration Act may permit separate decision records but not the separation of a child's visa status from her parents due to a legal error or omission by the Minister’s Department in failing to perform its functions in a reasonable and timely manner in accordance with the Migration Act.
Combined visa application
On 14 November 2014 the third applicant's mother made a "combined" protection visa application with the applicant's father as a member of her mother's family unit.
The ordinary meaning of "combined" is join or merge to form a single unit or substance. Synonyms are amalgamate, merge, unite, integrate, incorporate, fuse, blend, meld, compound, alloy, homogenize, synthesize, consolidate, put together, unify, pool, intermingle, mix, intermix;
The third applicant was born on 7 December 2014.
Section 78(2) of the Migration Act operates such that when the third applicant was born in Australia she was taken to be granted a visa of the same kind and class as her parent(s), therefore the third applicant was granted a bridging visa C.
Regulation 2.08(1)(a) and (b) of the Regulations provides that as the applicant was born after her mother made the combined protection visa application and before it was decided, she was joined to the review applicants’ combined protection visa application. This is clear in the wording of regulation 2.08(1)(c) and (d):
(c)the child is taken to have applied for a visa of the same class at the time he or she was born; AND
(d)the child's application is taken to be combined with the non-citizen's application.
(counsel’s emphasis retained)
Subclause (d) makes it clear that the third applicant is combined with her mother's application in the ordinary meaning of “combined”, being join or merge to form a single application as a member of the family unit.
Regulation 2.08(2)(a) requires that the third applicant must satisfy the criteria to be satisfied at the time of decision of the combined application. This subclause can only refer to the decision made on the combined application on 17 December 2015.
There are also other legislative criteria that must be satisfied at the time of decision, first, as to whether the third applicant is eligible to be combined in her mother's protection visa application and secondly, ss.36(2)(b) and (c) of the Migration Act and subclause 866.223(3) of the Regulations as a member of her mother's family unit.
Section 65 of the Migration Act requires the delegate to consider the health criteria for all three applicants of the combined protection visa application under subsection(1)(a)(i) and apply the criteria of subclass 866 to all three applicants under subsection(1)(a)(ii). These requirements were not completed prior to making the refusal decision on 17 December 2015, as the delegate failed to act in accordance with regulation 2.08 and join the third applicant to her mother's combined protection visa application and assess the third applicant against the relevant health and visa criteria.
The third applicant's mother notified the Minister’s Department that she was pregnant in the application forms, by email on 7 December 2014, at the biometrics interview, at the medical assessment and during the interview with the delegate in which the third applicant was present and her mother handed up her birth certificate.
The third applicant submits that she did not and has not made a separate application on 7 December 2014 from her mother's combined application. Furthermore, the wording of regulation 2.08 does not permit an application by a newborn child to be separate from her parent(s)' application or in the child's own right or not to be combined with his or her parent(s)' application. Therefore, the refusal decision of 11 January 2017 is invalid.
The third applicant notes the authorities identified by the Minister on the proposition that separate decision records can be provided to members of a family unit to a combined protection visa application. She submits that while that may be so, in her case the separate decision record was the result of an error or omission by the Minister’s Department to process or acknowledge her inclusion in her mother's combined protection visa application on or before17 December 2015, one year after her birth in Australia and not as a result of consideration of protection claims different from that of the first applicant's protection claims. Indeed, the decision record was a duplicate of the decision record of 17 December 2015 and made 13 months after the first and second applicants' visa refusal. No separate consideration of third applicant was undertaken by the Minister’s Department. It is said to have been a simple failure by the Minister’s Department to join the third applicant to her parents' combined protection visa application in a reasonable and timely manner.
The third applicant submits that her application should be remitted to the Minister’s Department to be joined to her mother's combined protection visa application and then the combined protection visa application of 14 November 2014 to be decided in accordance with the requirements of the Migration Act.
Minister’s contentions
The Minister submits that the third applicant’s case now appears to have two strands.
The first strand is said to hinge entirely on the construction of regulation 2.08 of the Regulations. It requires the third applicant to establish that the Tribunal’s decision to refuse her a visa is necessarily invalid because her application was determined separately from the applications of her parents. The Minister submits that the third applicant cannot do so.
The Minister submits that the correct legal analysis that should govern the Court’s disposition of this aspect of the argument is set out in the Minister’s submissions. The third applicant does not grapple with that analysis. The essential points are:
a)the statutory scheme reflected in the Migration Act and the Regulations requires the making of an individualised decision to grant, or refuse to grant, a non-citizen a visa, in respect of each individual application by a non-citizen;
b)that position is not affected by regulation 2.08 of the Regulations, which facilitates the “combining” of certain visa applications for administrative purposes and ensures that the child applicant need only satisfy the “time of decision” criteria. Regulation 2.08 does not have the consequence of merging those applications into one single application in respect of multiple people and requiring the Minister to make one single “decision” for all of those people;
c)even where visa applications have been “combined” under regulation 2.08, there is nothing in the statutory scheme that compels the Minister to make decisions on the various applicants at the same time, or to record those decisions in the same decision record.
The Minister submits that none of the provisions cited in the applicants’ supplementary submissions advance the third applicant’s case. In particular, as to regulation 2.08(1)(d), “combined” is a protean term that takes its meaning from the context in which it appears. That context is explained in the Minister’s submissions. Properly understood, the way the applications are “combined” is that they are linked for the relevant purposes, but not in a way that mandates the making of some joint decision, or several simultaneous decisions, on the applications.
The third applicant concedes that the Migration Act “may permit separate decision records” in respect of the applicants to combined applications. In the Minister’s submission, it is hard to reconcile that concession with her position that regulation 2.08 “does not permit an application by a newborn child to be separate from her parent(s)’ application or in the child’s own right or not to be combined with his/her parent(s)’ application”, because a separate decision record necessarily involves some separate treatment of the child’s application. If the argument is that all applications combined under regulation 2.08 need to be resolved in the same way even if they are recorded in different documents, that is said to be contrary to authority.
The third applicant goes on to argue that her “separate decision record” (by which she appears to mean the separate decision and decision record of the Minister’s delegate in her case) was “the result of an error/or omission by the [D]epartment to process or acknowledge her inclusion in her mother’s combined protected visa application on or before 17 December 2015 … and not as a result of consideration of protection claims different from that of the first applicant’s protection claims”. If the third applicant contends that the jurisdictional error here is sourced in a factual matter explaining how her application came to be separately determined, namely, that the Minister’s delegate overlooked information about her when it made its decisions in her parents’ cases on 17 December 2015,[42] that complaint is answered by the Minister in the same way as above. If the Migration Act and Regulations authorise the making of separate decisions at different times in respect of the applicants to combined visa applications, then the Tribunal’s separate determination of the third applicant’s application (emphasising that this is the decision under challenge) did not reflect any misapprehension of the nature or limits of its functions or powers.[43]
[42] CB 274 at [20]-[21]
[43] cf Craig v South Australia (1995) 184 CLR 163 at 12
The Minister notes that the second strand of the third applicant’s argument is that the jurisdictional error made by the Tribunal in respect of her parents infected its decision on her application. It is said that the Tribunal’s “main factual finding underpinning” its decision not to grant the third applicant a visa was “based on its finding that the first and second applicants were validly notified of the [D]epartment’s refusal decision of 17 December 2015”. It is said not to be entirely clear how this argument links with the ground of review concerning regulation 2.08 of the Regulations.
The Minister submits that this strand should also be rejected. The Tribunal’s “comprehensive” decision in respect of the third applicant’s application was “entirely self-contained”. No aspect of its reasoning depended upon or was tainted by its erroneous conclusion that it did not have jurisdiction to deal with the parents’ applications. The third applicant does not identify any parts of the decision that were “underpinned” by that conclusion.
The Minister contends that, as part of its decision-making process, the Tribunal considered all of the claims made and evidence submitted by the third applicant’s parents in their cases, as well as the claims separately made on her behalf.[44] It held a hearing in which her parents were able to give evidence and present arguments.[45] It independently assessed each claim,[46] and did not premise any of its reasons on its jurisdictional findings in her parents’ cases, or on the reasoning or findings in either the first delegate’s decisions or the second delegate’s decision.[47] Thus, the Tribunal’s denial of its jurisdiction in the parents’ cases “did not impact on anything which the Tribunal otherwise did in finding facts and in reasoning to a conclusion”[48] in the third applicant’s case. This is because the Tribunal “properly considered and determined” all of the claims that the parents had raised in their cases as an aspect of its determination of the child’s application. Whether or not the two delegates’ decisions “duplicate[d]” each other or were “fundamentally flawed”, is irrelevant to this application for review of the Tribunal’s decision.
[44] See CB 275-277 at [31]-[42], CB 278 at [45]
[45] CB 277 at [40]
[46] CB 278-288 at [44]-[98]
[47] Note that the second delegate concluded that the third applicant had statutory effective protection in a third country, and did not need to consider the refugee or complementary protection criteria: CB 178-184. Conversely, the Tribunal assessed the refugee and complementary protection criteria and did not need to consider whether the third applicant had safe third country protection: at [99], [105]-[107]
[48] Shrestha v Minister for Immigration (2018) 264 CLR 151 at [10]
The Minister submits that the correct conclusion is that the Tribunal’s finding that it had no jurisdiction in the first and second applicants’ cases had no bearing on its determination of the third applicant’s case. The jurisdictional error vitiating the former did not infect the latter.
Finally, the Minister submits that the analysis above, asserting that the Tribunal considered all of the parents’ evidence and claims as part of its determination of the child’s application, has another important consequence. That is that, even if the Tribunal misconstrued regulation 2.08 (which is not conceded by the Minister), an interpretation of this regulation that required the making of a decision or decision record dealing with all three applicants together could have made no difference to the decision that was made in the third applicant’s case. In those circumstances, any error in determining the third applicant’s application was not material, and not jurisdictional.[49]
[49] see Hossain v Minister for Immigration (2018) 264 CLR 123 at [29]-[31]
Orders sought
The Minister submits that the third applicant’s application should be dismissed with costs. However, in circumstances where the consent orders made on 30 January 2020 reserved the question of costs in respect of the first and second applicants’ applications, and the costs issues arising in the various applications may overlap to some extent, the most appropriate course would be for the parties to make submissions on costs after having had the benefit of the Court’s judgment in this proceeding.
Resolution
It is unfortunate that the first delegate appears to have overlooked the birth of the third applicant and made a decision which omitted her claims. That oversight necessitated the second delegate’s decision. I accept the Minister’s submission that no error by either delegate results from the course adopted and, even if it did, there would be no impact on the Tribunal’s review because the Tribunal’s jurisdiction extends to the review of purported decisions by a delegate as well as valid ones.
The mischief in this case arises from the error made by the Tribunal in relation to its jurisdiction. The Minister concedes that the Tribunal erred in finding that it lacked jurisdiction to consider the review applications by the first and second applicants. That error had a further unfortunate consequence, namely that the review applications by the first and second applicants were uncoupled from the review application made by the third applicant. Having taken the trouble to appropriately embark upon a review of the claims of all three applicants in one decision, the Tribunal regrettably fell into the error as to its jurisdiction which has had the effect of once again bifurcating the applications.
There is in the result, a risk that either the first and second applicants will ultimately receive a visa outcome different from that of their child or that the Tribunal’s decision in relation to the third applicant may in some way drive the outcome for the first and second applicants on review.
There are circumstances in which separate decisions on review are unavoidable. One such circumstance is where an applicant child is born following the decision of the delegate. That of course was not the case here. The bifurcation of consideration of the visa applications by the delegates led the Tribunal into error as to its jurisdiction. If there had been only one decision by a delegate, the present situation would not have arisen.
Except in relation to a claim in respect of her education prospects in Colombia, the claims by the third applicant depended on the claims by her mother and she claimed as a member of her family group. It was entirely appropriate and desirable that the Tribunal consider the claims of all three applicants together in one decision. It would have done so, but for its error as to its jurisdiction.
In my view, that error vitiated the Tribunal decision in its entirety. The review of the third applicant’s claims was necessarily truncated without any review and outcome on the claims of the first applicant. There does not appear to be any authority on the point but, in my opinion, the Tribunal’s review was disabled by its jurisdictional error and the decision as a whole should be remitted.
Conclusion
The Minister has already conceded that the Tribunal decision should be remitted in respect of the first and second applicants. The most appropriate outcome would be to amend the consent orders already made to deal with the circumstances of the third applicant consistently with these reasons.
I will hear the parties as to the appropriate form of orders that the Court will make, and also on the question of costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 2 April 2020
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