BJJ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 197
Federal Circuit and Family Court of Australia
(DIVISION 2)
BJJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 197
File number: SYG 751 of 2018 Judgment of: JUDGE GOODCHILD Date of judgment: 17 March 2023 Catchwords: MIGRATION - reinstatement application - lack of satisfactory explanation - no prejudice - substantive application for judicial review has no reasonably arguable prospect of success - application dismissed Legislation: Migration Act 1958 (Cth) ss 415, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FR 513
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 9 March 2023 Place: Sydney Solicitor for the Applicant Applicant in person Solicitor for the Respondent Mr T Hillyard of Sparke Helmore Lawyers ORDERS
SYG 751 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BJJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
17 march 2023
THE COURT ORDERS THAT:
1.The application in a proceeding filed 14 February 2023 is dismissed.
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 GOODCHILD:
introduction
By an Application in a Proceeding accepted for filing on 14 February 2023, the applicant seeks reinstatement of an application for judicial review made on 21 March 2018 (“the reinstatement application”). The judicial review proceedings (“the substantive proceedings”) were dismissed by a Registrar on 30 November 2022. That dismissal was pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) consequent upon the applicant failing to appear at a callover listed that day.
The first respondent opposes the applicant’s reinstatement application, and also seeks an order for costs.
BACKGROUND AND PROCEDURAL HISTORY
The applicant is a 50-year-old citizen of Malaysia who arrived in Australia on 2 November 2015.
On 25 October 2016 the applicant applied for a protection visa. On 9 March 2017 a delegate of the then Minister for Immigration (“the delegate”) made a decision to refuse to grant the applicant the visa.
On 3 April 2017, the applicant lodged an application with the Administrative Appeals Tribunal (“the Tribunal”) for review of the delegate’s decision. For reasons which will later be summarised, on 2 November 2017, following a hearing, the Tribunal decided to affirm the decision under review.
On 21 March 2018, the applicant initiated proceedings in the Federal Circuit Court of Australia (as it was then known) seeking judicial review of the Tribunal’s decision. The applicant’s grounds, as they appear in her originating application, are as follows:
There exists jurisdictional error and unfairness
1.There exists unfairness in my case.
Some questions put to me by the Tribunal are misleading and hard to understand.
2.The Tribunal does not properly consider potential risk I will face if I return to Malaysia.
3.The Tribunal misunderstood my words.
4.The Tribunal does not consider if there exists any error made by immigration officer.
(As per original)
The affidavit filed with the substantive application annexes a copy of the Tribunal Decision Record (“the decision”) and contains the following on affirmation:
When my boss and I complained corruption at the Tax Office, the police were called and my boss and I were detained for 24 hours.
Because I knew the history of the officials’ of bribery, I was intimidated and threatened.
I was not protected by the police.
I will be killed if I returned to Malaysia.
(As per original)
On 12 April 2018 at a court event before a Registrar, procedural orders were made with the consent of the parties, including that the matter be listed for callover on a date to be fixed administratively. According to court records, on this day the applicant appeared in person with an interpreter.
On 11 May 2018 the first respondent filed a Court Book (“CB”).
On 7 March 2019 the applicant filed a Notice of Address for Service identifying a street address and an email address as the addresses for service of notices in the proceedings.
On 17 November 2022 at 6:02pm an email was sent from the Migration Team of the Federal Court to the parties.[1] The email address for the applicant noted on that email is the same email address recorded in the applicant’s Notice of Address for Service document.
[1] Affidavit of Ms Katherine Louise Evans dated 24 February 2023, Annexure KE2.
By the email sent on 17 November 2022, the applicant was notified that the matter was listed for callover before a Registrar on Wednesday, 30 November 2022 at 2:15pm. This email also stated that the callover was to be conducted by telephone (with a telephone number provided), and that if the applicant failed to appear on the relevant date the matter may be dismissed with costs.
At the callover on 30 November 2022 there was no appearance by or on behalf of the applicant. Accordingly, the applicant’s substantive application was dismissed for non-appearance pursuant to r 13.06(1)(c) of the Rules.
THE REINSTATEMENT proceedings
On 14 February 2023, the applicant filed the present reinstatement application which contains the following grounds:
1. The decision made by AAT should be quashed.
2. The applicant’s case should be remitted to AAT for reconsideration.
3. My case should be reinstated in FCFCOA.
(As per original)
The application was accompanied by an affidavit affirmed on 6 February 2023 and accepted for filing on 14 February 2023. Annexed to that affidavit are the court orders of 30 November 2022 reflecting the dismissal of the substantive application. That affidavit also contains the following:
1. I suffered intimidation and threats in Malaysia.
2. I was not protected by the police.
3. I would be killed if I returned to Malaysia.
4. I missed the email informing me of attending the call over hearing, so I did not attend the hearing. I want to continue my application.
(As per original)
On 14 February 2023 a Registrar made orders in Chambers for the applicant to file written submissions regarding the reinstatement application on or before 22 February 2023. Orders were also made for the first respondent to file written submissions regarding the reinstatement application on or before 27 February 2023.
The applicant did not file written submissions. The first respondent filed written submissions and a supporting affidavit on 27 February 2023.
On 9 March 2023, the applicant’s reinstatement application proceeded to hearing before me.
The reinstatement hearing
At the reinstatement hearing before me on 9 March 2023, the applicant was unrepresented. She was assisted by an interpreter for the Mandarin language. Initially, the applicant engaged with me in English. However, as I was concerned that the exchanges between herself and I may not be understood, I insisted that she use the interpreter and I insisted that the proceedings be interpreted in the usual fashion.
Prior to embarking upon the hearing of the applicant’s reinstatement application, the applicant was provided with a copy of the court book, copies of her substantive application and supporting affidavit, copies of her reinstatement application and supporting affidavit and the first respondent’s submissions.
Exhibited before me, at the request of the first respondent’s solicitor, were copies of emails and correspondence attesting to the service (by email and post) of the first respondent’s submissions and affidavit filed 27 February 2023.[2]
[2] Exhibits R1 and R2.
The applicant told me that she had learnt of the hearing the night before when the legal representative for the first respondent contacted her by telephone to confirm her attendance.
At this point I stood the matter down to provide an opportunity for the applicant to have the submissions and the affidavit interpreted to her.
When the matter resumed, I enquired of the applicant on two occasions if she was in the position to progress with the hearing with respect to her reinstatement application. The applicant confirmed on both of those occasions that she was.
CONSIDERATION
Relevant law
The relevant law was succinctly set out in AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 at [4]-[8] per Judge Given as follows:
4The Court’s power to set aside the orders made on 12 December 2016 is (now) contained in r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) which relevantly provides that:
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party;
5Whether or not to accede to the reinstatement application is a discretionary power which requires me to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50].
6In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (which was cited with approval by the Full Court in FBS18), Ryan J considered the principles relating to an application for reinstatement of a matter dismissed in the absence of a party. His Honour found at [7] that where reinstatement is sought, a discretion falls to be exercised by the Court [and] requires consideration of certain factors which his Honour listed as:
(a) first, whether there is a reasonable excuse for the party’s absence;
(b)secondly, the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and
(c)thirdly, whether the application for reinstatement has a reasonable prospect of success in the substantive proceeding, with the grounds to be taken at an impressionistic level: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475. While those decisions dealt with the discretion to extend time, which carries with it a clear prescribed time period in which to commence proceedings, there appears to me to be no material difference to using this standard of assessment in the exercise of the Court’s discretion as to whether to reinstate under r 17.05 of the Rules: see AVC19 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752 at [3] to [5] per Davies J.
7The matters referred to in the preceding paragraph are not a definitive list, but are consistently considered in the exercise of the Court’s broad discretion to reinstate (see CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J), noting the caution expressed by the Federal Court in AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32] where McKerracher J said:
…that whatever assistance that may be gleaned from earlier judicial decisions considering the discretion to set aside orders made in the absence of a party, those authorities can only operate as a guide to the exercise of the discretion in r 16.05...
Is there a reasonable excuse for the applicant’s non-appearance and any delay?
As noted earlier, the applicant’s substantive application was dismissed for non-appearance at the callover on 30 November 2022. The reinstatement application was filed on 13 February 2023 which I consider, and the first respondent agreed, involved only a moderate delay.
The applicant deposes at [4] of her affidavit that she had missed the court event on 30 November 2022 as she had “missed the email informing me of attending the callover hearing…”
The first respondent submits that the reason provided by the applicant for her non-appearance is “wholly unsatisfactory”. The first respondent states that the applicant was properly notified of the listing date in circumstances where the email notification sent from the Court dated 17 November 2022 advising the parties of the callover was addressed to the applicant’s email address contained in her Notice of Address for Service filed 7 March 2019.
The first respondent also submits that prior to the callover, a further email was sent to the applicant from the first respondent’s solicitor reminding the applicant of both the date and time of the callover and the likely consequences of a failure to attend on the relevant court date. The first respondent relies upon an affidavit filed by Ms Katherine Louise Evans who is an employed solicitor with the legal representatives for the first respondent. That affidavit annexes email correspondence addressed to the applicant concerning the callover listed before the Registrar on 30 November 2022.
When asked at the reinstatement hearing to further explain her affidavit evidence that she “missed the email”, the applicant told me that the email notifying her of the court date went to her junk mail because it was sent from a personal email address and not one from her contact list. The applicant added that she did not check her junk mail regularly and when asked why this was the case she stated that there were two different junk mail folders, one in Chinese and one in English.
It was also the applicant’s oral evidence that it was only when she was alerted through a separate electronic platform that her visa expired, that she learned she had missed the callover in November 2022. She told the Court that this led her to set up a different email account, which is the one that appears on her reinstatement application.
Although I accept the applicant provided some explanation for her non-appearance, I do not regard the particular reasons proffered by her entirely satisfactory. This is so, having particular regard to the fact that notifications sent regarding the court event were correctly addressed to the personal email address for service given by her for the purposes of the proceedings, and the fact that it was incumbent upon the applicant herself to check that nominated email account.
In any event, even if I were satisfied that the applicant provided a reasonable excuse for her non-attendance, as will be discussed shortly, matters in relation to the merits of her substantive application weigh heavily against reinstatement.
Is there any prejudice to the first respondent from reinstatement, and if so, what is the nature of such prejudice?
The first respondent accepted that there was no prejudice that could not be cured by costs.
The mere absence of prejudice is not a sufficient basis to exercise the discretion to reinstate the applicant’s application.[3]
[3] AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [34] per McKerracher J.
The absence of prejudice to the first respondent is not a factor of significance in my reasoning in this case in the circumstances of the applicant’s inadequate explanation for her non-attendance and also the lack of merit in the substantive application which I will deal with below.
Does the judicial review application have a reasonably arguable prospect of success?
The grounds contained in the applicant’s substantive application were largely unparticularised and did not contain detail other than what is repeated at [6] above. The affidavit evidence of the applicant is confined to those paragraphs identified at [7] above, annexing the decision record of the Tribunal.
Orders were made for the applicant to file and serve any amended application and any affidavit containing additional evidence to be relied upon. Orders were also made for the applicant to file and serve written submissions. She has not done so. The applicant has not put any transcript evidence before the Court.
On a review of the applicant’s substantive application and affidavit material in support of that substantive application, there is nothing that addresses any matters of jurisdictional error.
In any event, I will consider the applicant’s grounds, approaching the task required of me by way of an impressionistic consideration as to whether the judicial review application has reasonable prospects of success.
Before doing so, it is useful to first provide a brief summary of the Tribunal decision.
Tribunal decision
The Tribunal hearing of the applicant’s application for review was listed on 14 September 2017 and then adjourned to 2 November 2017. According to the Tribunal Hearing Record (CB 86-88) the hearing on 2 November 2017 commenced at 12:30pm and was completed at 2:42pm.
The decision records the Tribunal’s acceptance that the applicant was a citizen of Malaysia ([7]). The Tribunal identified that the issue in the case was whether any harm the applicant might suffer if she returns to Malaysia is systemic and discriminatory or intended to cause significant harm ([2]).
The decision notes that the applicant told the Tribunal that her cousin in Queensland assisted her with the application and also that her son, who is in university in Melbourne, helped her ([5]).
The decision notes that the applicant initially chose to give her evidence in English although the Tribunal made an interpreter in the Chinese (Mandarin) and English language available to assist her. The decision further notes that early in the hearing, after what were possible misunderstandings about its questions, the Tribunal asked the applicant to use the interpreter for the remainder of the hearing. The decision records that the Tribunal was satisfied that the applicant and the Tribunal understood each other well and that the applicant was given a meaningful hearing in accordance with s 425 of the Migration Act 1958 (Cth) (“the Migration Act”) ([6]).
The decision records a summary of the applicant’s claim that her fear of returning to Malaysia arises because she was a bookkeeper for a business where she kept two sets of books for tax evasion purposes and that she will be called to give evidence in an appeal relating to the financial penalty that was imposed by the Inland Revenue Board of Malaysia (“IRBM”) ([8]).
The Tribunal accepted:
(a)that the applicant signed fraudulent balance and closing statements ([29]);
(b)that the company the applicant worked for was engaged in tax evasion, the IRBM found the company had a false set of books and fined it MYR50,000 and uncharged taxes of MYR100,000 to 250,000 and that the company appealed the penalty notice to the Special Commissioners for Income Tax ([29]);
(c)that the applicant received a notice to give evidence in that appeal ([29]); and
(d)that the applicant will be asked to give evidence about unaudited balance statements and closing statements she signed ([31]).
The Tribunal considered that the applicant was “clear” that her concerns about going back to Malaysia relate to the hearing of the appeal by the company of the IRBM’s penalty for tax evasion, and not to any proceeding for tax evasion against herself ([32]-[33]).
The Tribunal records that when it clarified with the applicant if the only reason she did not want to go back to Malaysia is because she did not want to give evidence in the appeal and because she did not want to go to “court”, the applicant said “yes” ([32]-[33]).
The Tribunal observed that the applicant’s evidence about why she fears testifying in the company’s appeal was extremely vague despite having numerous opportunities to provide details ([34]). The decision records that the applicant did not explain what evidence she expected she would have to give, who was going to ask to give the evidence, why she could not tell the truth about the accounts, what trouble it might cause or who was going to cause her that trouble ([34]).
The decision records that the applicant mentioned she might be imprisoned for the fake accounts (my emphasis added). The applicant told the Tribunal that at no time has anyone ever suggested that she might be arrested or charged with anything or that she might be imprisoned ([35]).
The decision records that the applicant’s only claim is that she cannot testify against the accounts because it will get into her into trouble because she signed unaudited statements ([36]). To the extent that the applicant claimed that the trouble will stem from the IRBM revisiting the matter and charging her with some offence, the Tribunal found on the evidence the applicant provided, that it was not satisfied that there was a real chance this would occur ([36]).
The Tribunal found on the applicant’s own evidence that the IRBM knows the accounts with her signature are fake ([37]). The decision reports that the applicant says that there was never any suggestion she would be prosecuted for any offence ([38]).
The Tribunal found there is no real chance the applicant will suffer serious or significant harm from the IRBM because of signed false balance and closing statements that may have ultimately contributed to the company tax evasion ([39]).
The Tribunal found that if the applicant tells the truth about the statements she signed to the Special Commissioners for Income Tax she will not suffer any harm ([39]).
The Tribunal determined that the applicant did not have a real chance of suffering serious or significant harm because she tells the truth about, or testifies against, the fake accounts at the Special Commissioners for Income Tax appeal hearing ([40]).
The decision records that the applicant claimed that she was going to provide untrue evidence at the appeal before the Special Commissioners for Income Tax. Because of this claim, the Tribunal determined that it must consider whether, as a result of giving untrue evidence, the applicant will suffer any harm as a result of that future conduct. The decision records that the Tribunal put to the applicant that any harm she may suffer from not telling the Special Commissioners for Income Tax the truth would be the result of punishment for a breach of the rules that apply to that body under any relevant legislation ([43]).
The Tribunal found that there was no indication in the applicant’s claims or evidence that the applicant believes that any sanctions she may suffer for lying to the Special Commissioners for Income Tax about the fake accounts would be imposed with any intention other than to properly apply any applicable rule ([46]).
The Police and the Hooligans
The Tribunal accepted the applicant’s evidence that when the IRBM branch called the police they removed her from the premises and made a report. The Tribunal also accepted the applicant’s evidence that the only harm or intimidation she suffered was from a gang of Malaysians who told her not to talk about the bribe ([47]). The Tribunal reports the evidence given that the gang approached her only once and she suffered no harm. As a result, the Tribunal found that the applicant does not fear she will suffer harm from police, “rogues”, hooligans or Malaysian gang members for any reason if she returns to Malaysia ([48]).
The decision records that other claims regarding the police in the applicant’s statement, and other incidents of harm after the penalty notice referred to in her statement, were exaggerated by her cousin ([47]).
The Tribunal found that the applicant did not have a real chance of serious harm as a result of her participation in the tax evasion or telling the truth to the Special Commissioners for Income Tax ([52]).
The Tribunal found that any harm the applicant might suffer for lying to the Special Commissioners for Income Tax about the statements, is the result of a law of general application which would not be applied in a way that will discriminate against her ([53]).
With respect to the complementary protection criteria, the Tribunal found on the basis that the applicant told it that she had no fear, that there was no real chance, and consequently no real risk, that the applicant will suffer significant harm in the future from police, rogues, hooligans or Malaysian gang members in Malaysia or in relation to the bribes ([56]).
At [64] the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
I will now consider the apparent strength of the merits of the applicant’s substantive application.
Ground (1) - There exists unfairness in my case: some questions put to me by the Tribunal are misleading and hard to understand
I take the applicant’s complaint here to be that she was denied procedural fairness, such that some of the questions put to her by the Tribunal were misleading and hard to understand. The applicant did not identify what questions she says were misleading or how they were misleading or what questions were hard to understand.
The decision recorded that the evidence from the Tribunal hearing appears in the decision and not necessarily in the order in which it was given. The Tribunal recorded that initially the applicant chose to give her evidence in English despite an interpreter in the Mandarin and English languages available. The decision records that early in the hearing, after what were possible misunderstandings about its questions, the Tribunal requested for the applicant to use the interpreter for the remainder of the hearing. The Tribunal was satisfied that the applicant and the Tribunal understood each other well and the applicant was given a meaningful hearing in accordance with s 425 of the Migration Act ([6] of the decision). Clearly, the Tribunal was live to a concern about possible misunderstandings about its questions and record requesting the applicant to use the interpreter.
Even by way of a summary consideration of the decision, the detail provided as to the exchange between the applicant and the Tribunal on matters of substance leaves it difficult to conclude that there was any practical procedural unfairness arising from how the hearing was conducted.
There is nothing to suggest that the subject matter of the questioning of the applicant by the Tribunal was inappropriate or misleading. At an impressionistic level, the questioning focused on those matters apparently relevant and necessary for the purposes of the Tribunal to properly undertake its task in assessing the applicant against the relevant criteria.
Ground 1 does not disclose any reasonably arguable jurisdictional error.
Ground (2) - The Tribunal does not properly consider potential risk I will face of return to Malaysia
A fair reading of the Tribunal’s decision in respect of the assessment of harm or risk to the applicant should she return to Malaysia, reveals a considered assessment of the applicant’s claims as well as an active and thorough engagement with those claims.
The decision sets out in detail the evidence before the Tribunal, the matters raised directly with the applicant, the applicant’s response to those matters and the exchange between the Tribunal and the applicant during the course of the Tribunal hearing.
Again, a summary consideration of the Tribunal decision reveals that the Tribunal understood the applicant’s claim and took some care in identifying with particularity the applicant’s role in the business, the applicant’s conduct with respect to that role, the involvement of the IRBM and the penalty appeal. The decision records that the only reason the applicant does not want to go back to Malaysia is because she does not want to go to court “because she might get into trouble”. The Tribunal’s reasoning that there was no real chance the applicant will suffer serious or significant harm from the IRBM because she signed some closing statements, appears to have been reasonably open to the Tribunal.
The finding by the Tribunal that the applicant does not fear she will suffer harm from police, rogues, hooligans, or Malaysian gang members appears to have been reasonably open to the Tribunal, in circumstances where it was based on the applicant’s evidence at the hearing that she will not encounter any further difficulties from the gang and does not fear any future harm in Malaysia other than getting into trouble if she testifies before the Special Commissioners for Income Tax ([48]).
The Tribunal observed that the applicant’s claims about police and incidents of harm after the penalty notice referred to in her statement were exaggerations by her cousin. This observation was open to the Tribunal in circumstances where the Tribunal records that the applicant admitted that her cousin had exaggerated the story when writing her statement ([48],[24]).
Ground 2 does not disclose any reasonably arguable jurisdictional error.
Ground (3) - The Tribunal misunderstood my words.
This ground is not dissimilar to Ground 1, such that I take the applicant’s complaint to be that she was denied procedural fairness because she says the Tribunal misunderstood her words. The applicant does not identify the words to which she is referring, nor how those words were misunderstood.
The decision records with some detail the applicant’s employment as a bookkeeper with a company in Malaysia, that company’s prosecution for tax evasion and how the company was issued a penalty in its appeal to the Special Commissioners for Income Tax. The Tribunal identified that over the course of the hearing it became clear that the applicant was not claiming that she or her boss had been arrested, charged with tax evasion and now had to appear in court for that reason. Rather, the controversy related to the company’s appeal against the penalty for tax evasion issued by the IRBM.
Based upon an assessment of the applicant’s oral evidence at the Tribunal hearing, the Tribunal found that the applicant does not fear she will suffer harm from police, rogues, hooligans or gang members.
From my impressionistic consideration of the Tribunal’s decision, the applicant was provided with the opportunity to engage actively and effectively with the Tribunal. It cannot be said that the Tribunal dealt with the applicant’s claim in a summary or shorthand manner. The Tribunal recorded in some detail the evidence given by the applicant and the response from her to questioning from the Tribunal relevant to the assessment required of it.
Ground 3 does not disclose any reasonably arguable jurisdictional error.
Ground (4) - The Tribunal does not consider if there exists any error made by immigration officer.
By this ground, it is evident that the applicant does not understand the role of the Tribunal. That is by no means a criticism of her.
Part 7 of the Migration Act provides for the “Review of Part 7-reviewable decisions” by the Tribunal. “Part 7-reviewable decisions” relate to the grant or cancellation of protection visas in some circumstances, including the circumstances of this matter.
Section 415 of the Migration Act contained in Part 7, provides the Tribunal with the same powers and discretions that are conferred by the Migration Act to the person who made the decision that is being reviewed. The Tribunal’s power of reviewing a decision is “restricted to a consideration of whether or not that decision was the ‘correct’ or ‘preferable’ decision, and nothing more”[4]. As Bowen CJ and Deane J observed:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.[5]
(Emphasis in original)
[4] Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FR 513; [1999] FCA 31 at [37] Weinberg J (in respect of the same provision pertaining to Part 5).
[5] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.
If the applicant’s complaint is directed at the delegate’s decision, I agree with the submission of the first respondent that this Court does not have jurisdiction to review the delegate’s decision because such decision is a primary decision: s 476(2)(a) of the Migration Act.
Ground 4 does not disclose any reasonably arguable jurisdictional error.
CONCLUSION
In all of the foregoing circumstances, and as I am particularly not satisfied that any of the applicant’s grounds of judicial review have reasonably arguable prospects of success, I do not consider it in the interests of justice to reinstate the substantive application.
Accordingly, the application in a proceeding filed 14 February 2023 is dismissed. I will hear the parties on costs.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 17 March 2023
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