BWI18 v Minister for Home Affairs
[2019] FCCA 1769
•14 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BWI18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1769 |
| Catchwords: MIGRATION – Application for judicial review of Administrative Appeals Tribunal decision – where Applicant applied to the Tribunal for review of a previous Tribunal decision (First Tribunal decision) – differently constituted Tribunal found it had no jurisdiction to review the First Tribunal decision – whether Second Tribunal decision is affected by jurisdictional error – whether Applicant has sought review of the First Tribunal decision – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36, 338, 347, 411, 412, 476, 477 Migration Regulations 1994 (Cth), reg.4.02 |
| Cheng v Minister for Immigration and Citizenship [2011] FCA 1290 MZABP v Minister for Immigration & Ors [2015] FCA 1391, (2015) 242 FCR 585 MZABP v Minister For Immigration and Border Protection (No 2) [2016] FCAFC 138 Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491; (2000) 75 ALJR 470 SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 |
| Applicant: | BWI18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1034 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 14 June 2019 |
| Date of Last Submission: | 14 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms M Butler, Sparke Helmore |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1034 of 2018
| BWI18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore, revised from transcript)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth), in which the Applicant, by a combination of his application and affidavit in support, seeks judicial review of a decision of the Administrative Appeals Tribunal dated 13 March 2018. In that decision, the Tribunal determined that it did not have jurisdiction in respect of the Applicant’s application to the Tribunal.
Background
The Applicant, born in 1993, is a citizen of Malaysia. He arrived in Australia by plane on 20 October 2016 as the holder of a tourist visa, specifically, a visitor (class UD-601) visa. On 12 January 2017, he applied for a Protection (class XA) Visa.
The Applicant did not attend an interview before the Delegate, although he had been invited to do so. On 31 March 2017, a Delegate of the Minister for Home Affairs (then the Minister for Immigration and Border Protection) refused to grant the Applicant the Visa. On about 6 April 2017, the Applicant applied for merits review to the Tribunal (First Tribunal). On 15 January 2018, the Applicant attended a hearing at the First Tribunal, to make submissions and give evidence. He was self-represented. He did not present any written evidence at that hearing (as is revealed by the decision record), but gave oral evidence. On 2 February 2018, the First Tribunal affirmed the Delegate’s decision not to grant the Applicant the Visa (the First Tribunal decision).
The evidence before me shows that the Applicant received the First Tribunal’s notification of decision, and that attached to that notification were the statement of decision, the reasons and the document ‘MR25 Information about decisions – MR Division’. MR25 explains the Applicant’s review rights. Relevantly, the Applicant had, pursuant to s.477 of the Act, 35 days from the date of decision to make an application for judicial review to this Court. The First Tribunal decision was emailed to the Applicant under cover of a letter from the Tribunal dated 6 February 2018.
However, on 3 March 2018 the Applicant lodged a second application to the Tribunal to review a decision dated 6 February 2018 (that is the First Tribunal decision, by reference to the date of the cover letter). On 13 March 2018, the Tribunal (differently constituted from the First Tribunal), determined that it did not have jurisdiction in respect of the application made 3 March 2018 (Second Tribunal decision).
On 12 April 2018, the Applicant applied to this Court for judicial review of the Tribunal’s decision dated 13 March 2018, that is the Second Tribunal decision.
The First Tribunal decision
The First Tribunal was not satisfied that the Applicant met the refugee criteria in sub-ss.36(2)(a) or (aa) of the Act. The First Tribunal rejected the Applicant’s claims in their entirety, expressing adverse credibility findings based on significant inconsistencies and lack of specificity, and particularity in, and between, the Applicant’s written statement and his oral evidence. At [21] of the First Tribunal decision, the Tribunal stated:
Overall, the applicant’s evidence was so vague that the Tribunal has concerns as to whether the applicant was drawing on his own experiences at all. (See findings below).
The findings at [29] and [30] of the First Tribunal decision reflected these concerns:
[29] In both his written claims and his oral evidence at hearing, the applicant alluded to a friend who had conflict with other Muslims over some religious activities, and the applicant being targeted for having supported his friend. Beyond those basic elements, the two accounts differ sharply, despite the applicant's assurance at hearing that he had been 'careful' with his written application. Moreover, the applicant's evidence at the Tribunal hearing – of his religious activities in Kelantan, and the consequent conflict with local villagers – was hesitant and vague. The Tribunal does not accept that he was speaking from personal lived experience. Furthermore, even as presented, the claimed conflict with the villagers in Pasir Puteh sheds no light on why the applicant concludes that it is unsafe for him in his home area or throughout Malaysia.
[30] Having considered all the claims and evidence cumulatively, the Tribunal finds that the applicant did not engage in any 'missionary work' with his friend Iqwan in Pasir Puteh, which aroused religious, political or personal sensitivities. It also does not accept the following claims: - that he (or his friend Iqwan) were threatened, ordered out of the local area or attacked; that a person followed the applicant to his home village (in a menacing way); that the applicant feared for his safety anywhere in Kelantan, or Malaysia as a whole; or that he left Malaysia for any reasons associated with his protection claims. The Tribunal also does not accept that the applicant sought police protection; that he feels the police failed to respond adequately to any complaint (on this or any other occasion); or that he fears State protection would not be available to him for any reason should he require it in the future.
The First Tribunal concluded at [32], and did not accept that the Applicant faces a real chance of serious harm amounting to persecution, arising from any (now-rejected) past activities or any future intention to preach Islam.
Second Application to the Tribunal
I now turn to describe the Applicant’s second application to the Tribunal. The Applicant appears to have been self-represented in making his application for the Visa. He did not appear before the Delegate (as I have said above), and he appears to have been self‑represented before the First Tribunal and before the Tribunal the second time.
In making his second application to the Tribunal, he lodged a form titled “ER1” online. Under the heading “Decision to be Reviewed”, the Applicant stated that the decision for review is a “visa refusal” decision dated 6 February 2018 for Visa class XA, subclass 866 Visa. The Applicant also provided the departmental file number which corresponds to the file number for the Delegate’s decision dated 31 March 2017. The Applicant did not upload any documents or decision records with the application, as indicated by the words “Nil documents uploaded” under the last section “Document Upload”.
The Second Tribunal decision
Turning next to the Second Tribunal decision, the Tribunal noted that the Applicant sought a review of the decision purportedly made on 6 February 2018, and that the only decision made on that date with respect to the Applicant was the decision of the First Tribunal (made 2 February 2018 and notified to the Applicant by letter dated 6 February 2018). The Tribunal determined that it had no jurisdiction and made its finding on two bases:
(a)first, it noted (at [1] and [3]) that the only decision made on 2 February 2018 appeared to be the decision of a differently constituted Tribunal (i.e. the First Tribunal decision). The Tribunal found that it had no jurisdiction in respect of the application. It noted that it had jurisdiction to review a decision under the Act if an application was properly made under s.347 or s.412. Sections 338 and 411 of the Act and regulation 4.02(4) of the Migration Regulations 1994 (Cth) set out a range of decisions that are reviewable in the Migration and Review division of the Tribunal. The Tribunal found that these provisions included certain decisions but not a decision of the Tribunal (decision at [2]);
(b) secondly, if, in fact, the Applicant intended to seek further review of the Delegate’s decision, the Tribunal found it had no jurisdiction to review a Delegate’s decision twice. The Tribunal noted that the Applicant had previously sought review and that a Tribunal (that is, the First Tribunal) had carried out its statutory duty to review the decision under the Act, referring to a number of cases (at [3]). Accordingly, at [4], the Tribunal found that as the original decision to review a protection Visa has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision by the Tribunal.
Application to this Court and grounds of review
The Applicant relies on his application filed 12 April 2018 which sets out six grounds of review, as follows (without alteration):
1. There has been a breach of the rules of natural justice in the making of the decision
2. Procedures that should have been observed in making the decision were not observed
3. The decision was not authorised by the Act under which it was made.
4. The decision involved an error of law, whether or not the error appears on the record of the decision.
5. The is no evidence or other material to justify the making of the decision.
6. The decision was otherwise contrary to law.
The Applicant has not provided any particulars. In the application to this Court, the Applicant cross-checked the box “Decision Made by a Tribunal”, specified as the “Administrative Appeals Tribunal”. He also cross-checked the box “Immigration Assessment Authority” and provided the date of decision as 31 March 2017. There is no corresponding decision by the Tribunal or the Immigration Assessment Authority in respect of the Applicant so dated. That date is the date of the Delegate’s decision. However, pursuant to s.476 of the Act, this Court’s jurisdiction does not extend to review that decision.
The Applicant ticked “no” to indicate he was not applying for an order that the time for making the application be extended under s.477 of the Act. He filed an affidavit deposed on 12 April 2018 with his application, and in that affidavit, as well as setting out the bare events of his timeline in coming to Australia, he stated that his protection Visa was rejected on 31 March 2017, and that:
[10] Then I applied my AAT on 6 April 2017.
[11] My AAT was rejected 13 march 2018.
He then set out his “grounds of appeal”, being the same as the grounds set out in the grounds of review in the application. He attached the Delegate’s decision and the letter of notification of the Delegate’s decision, the Second Tribunal decision, cover letter notification of 14 March 2018, and a copy of MR25which last document, as I have identified above, sets out information about the Applicant’s rights of review of Tribunal decisions.
Proceeding before this Court
The Applicant appeared before me today unrepresented, but with the benefit of Madam Interpreter interpreting in the Malay language. He had the benefit of translation of the Minister’s submissions before I came onto the bench. Ms Butler, solicitor, appeared for the Minister.
The Applicant sought to hand up a recently dated letter of support from his current employer, to which Ms Butler objected. In my view, her objection is properly made. That letter is not relevant to the task before this Court. I have rejected the letter.
I asked the Applicant whether he wished to proceed with the application, and he indicated that he did so. I explained to the Applicant the role of the Court and the limits of the Court’s task in judicial review. I explained that the Court could hear and determine whether there were any legal problems with the decision of the Tribunal from which he sought review, but that this Court did not undertake a merits review, and generally would not inquire into the facts which he claimed in support of his Visa. Thus, I explained to the Applicant that it is not for this Court to reconsider his claims and reach different findings or conclusions.
I explained the cost consequences, having first confirmed with Ms Butler that her office had explained to the Applicant prior to, or during, the first directions hearing in the proceeding the cost consequences of proceeding with his application and the potential costs on losing. I informed the Applicant of the Court’s current scale costs.
The Applicant confirmed that he wished to continue with the application for judicial review. When I asked him whether he wished to press all grounds, he said, “Not all, just some”. He then said that he did not understand the grounds, and said to the effect, “I just need my visa to be extended”. He made the submission that he needed to get his Visa and the problem, that if he lost and had to pay, he would need to work. Later, during the hearing, he claimed that what he was asking this Court to do was extend his bridging visa. I explained to the Applicant that the Court could not, in the circumstances of his case, give that relief.
The Applicant did not provide any other documents than his employer’s letter of support (which I have rejected as irrelevant), and said he did not have any written submissions. In the circumstances, I ensured that the Applicant’s affidavit was read, as it is only when read together with the Applicant’s affidavit that the application has any content. For reasons which will become apparent below, I asked the Applicant whether he wanted to have the Court review the First Tribunal decision, and explained that if he did so, he would need to make an application for an extension of time. He did not give any indication that he wanted to Court to review the First Tribunal decision, or to extend time to enable that course to be followed.
On my further pressing the Applicant, he did not respond responsively. The Applicant reiterated “I only want to get my Visa back. That is all.” As to why, the Applicant stated “I just don’t want to return to Malaysia. Please, I would like to appeal to you, you Honour. I- I really need my Visa back.” When I asked him to explain why that was so, he said, “Because I like working here and according to my religion.” When pressed again, he said he had nothing further to say.
I invited Ms Butler to address the question of a possible extension of time in relation to the First Tribunal decision. I incorporate Ms Butler’s submissions below.
Consideration
I have had the benefit of Ms Butler’s submissions. I accept her submissions, and draw from those submissions in these reasons.
I interpose to say, for the benefit of Madam Interpreter, that I will, in large part, follow the structure of Ms Butler’s written submissions.
Grounds 1 and 2
Grounds 1 and 2 contend that “There has been a breach of the rules of natural justice” and that “Procedures that should have been observed… were not observed”, respectively. The statutory requirements in Part 7 Division 4 of the Act, including s.422B, do not apply in circumstances where the Tribunal does not have jurisdiction.
I note and accept Ms Butler’s submission that, in limited cases, such as where there is potential for a genuine dispute about the facts, the Tribunal may be obliged to provide common law “natural justice” in respect of its consideration whether it has jurisdiction to review the application, so that an applicant be given a reasonable opportunity to deal with matters adverse to their interest that the decision maker proposes to take into account in exercising its power: see SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [36]; and Cheng v Minister for Immigration and Citizenship [2011] FCA 1290 at [30]. I accept the Minister’s submission that the present matter is not such a case. It is indisputable that the Tribunal was incapable of reviewing the Delegate’s decision, because the Delegate’s decision had already been validly reviewed.
Once the First Tribunal had delivered its decision (and the Applicant does not point to any jurisdictional error in that First Tribunal decision, nor, on my consideration, is one obviously apparent on the face of the decision), there was no further function that is authorised under the Act for the Tribunal to carry out, and the second Tribunal had no power to reopen the Delegate’s decision. The Tribunal is also incapable of reviewing the decision of a differently constituted Tribunal: see the consequences of ss.338 and 411 of the Act, which do not include a decision of the character of the First Tribunal decision.
It follows, and I so find, that the Tribunal did not have discretion to make any decision other than the one it did. Further, any opportunity afforded to the Applicant to make submissions or provide evidence on the question of jurisdiction would have been a hollow opportunity. The Applicant did not point to any obligation to afford natural justice. Ms Butler, acting for the Minister, and having regard to the Minister’s obligations as a model litigant, has not identified any such obligation. But even if that were the case, given what I have said above, no practical injustice flowed from any failure to allow the Applicant to address the Tribunal on the validity of his application. Grounds 1 and 2 are not made out.
Grounds 3, 4 and 6
Grounds 3, 4 and 6, contend (respectively) that “the decision was not authorised by the Act under which it was made”, that the decision “involved an error of law, whether or not the error appears on the record of the decision”, and that the decision “was otherwise contrary to law”.
Ms Butler submits, and I accept, that these grounds have no merit. As I have already referred to above, the Tribunal was incapable of reviewing the Delegate’s decision, or the First Tribunal’s decision. By reason of the sections of the Act to which I’ve already referred, the Applicant did not establish, and cannot establish, how it could be said that the Second Tribunal decision was not authorised by the Act.
As a valid application for review had not been made by the Applicant, in the circumstances of this case, the Tribunal was not authorised to make any decision other than the one it did. There is no error apparent on the record of the decision, and neither the Applicant, nor the Minister, acting as model litigant, identifies any error of law. Further, each of grounds 3, 4 and 6 are un-particularised. The Applicant’s affidavit does not remedy this lack. Grounds 3, 4 and 6 are not made out. They each fail.
Ground 5
I turn to ground 5. Ground 5 asserts that there is “no evidence or other material to justify the making of the decision”. This ground cannot be made out. It is contrary to the facts. The material before the Court shows that the second Tribunal was asked to review the decision of the First Tribunal, or possibly the Delegate’s decision. The Delegate’s decision was a decision that had already been reviewed. As Ms Butler has submitted, in circumstances where the second Tribunal had no authority to decide otherwise than it did, the information before it was adequate to allow it to proceed in the way it did and to reach the decision it made. I dismiss ground 5.
Whether the Applicant sought review of the First Tribunal decision
It follows that I conclude the application as made must be dismissed. Before I dismiss the application, I propose to say something about whether the Applicant, in truth, sought review of the decision of the First Tribunal and an extension of time in order to do so. I note that the Applicant has not formally, or informally, made any application to this Court seeking an order that time be extended in order to enliven this Court’s jurisdiction to review the First Tribunal decision. For the Applicant now to seek an order to extend time in which to file an application for review in this Court of the First Tribunal decision would require the Applicant to explain a delay of approximately 15 months.
The Applicant has not provided orally today (or at any other time) any explanation about why he did not seek judicial review from this Court of the decision of the First Tribunal decision within the 35 days as prescribed by s.477 of the Act, or at any later time. If in truth what the Applicant sought to do was to enliven this Court’s jurisdiction to review the First Tribunal decision that would require the Court to operate under an assumption that the grounds of review are the same as the grounds of review which the Applicant has set out in respect of the Second Tribunal decision.
Ms Butler made submissions that the time that had passed since the First Tribunal decision required that there be exceptional circumstances before the Court could decide to extend time. She described the delay as a significant delay. Ms Butler relied on Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491; (2000) 75 ALJR 470, a decision of McHugh J, and particularly at [16]. She submitted that in cases of extreme delay (including a significant delay), McHugh J’s observations at [16] should be given weight. The Minister did not cavil with the general test I have set out below derived from the authorities.
Whilst I am not convinced that this Court’s consideration of the question of extension of time is to be characterised as McHugh J did in Ex Parte Marks, the time that has passed since the First Tribunal decision is considerable.
Section 477(2) of the Act provides that this Court may, by order, extend the 35 day period in which an application for judicial review may be made, as the Court considers appropriate, if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The factors that the Court will take into account when considering whether an extension of time should be granted include:
(a) the extent of the delay and the explanation for delay;
(b) any prejudice the Minister might suffer because of the delay; and
(c) the merits of the proposed application or, as it may otherwise be put, the prospects of success on the substantive application.
I refer to Mortimer J’s consideration of the principles in MZABP v Minister for Immigration & Ors [2015] FCA 1391, (2015) 242 FCR 585, at paragraphs [62] and [63]. That consideration was approved by the Full Court of the Federal Court in MZABP v Minister For Immigration and Border Protection (No 2) [2016] FCAFC 138. I am guided by those authorities.
When considering the merits of the Applicant’s substantive application (on the assumption that one may have been made in the terms he made the application for review of the Second Tribunal decision), the Court will form a view on an impressionistic reading and consider whether a ground has reasonable prospects of success, or whether it is hopeless and destined to fail. I have referred in outline above to the reasons of the First Tribunal decision. I note that the First Tribunal had limited evidence before it and there does not appear to have been any supporting documents other than identity documents provided by the Applicant.
The First Tribunal found that there were significant errors and inconsistencies in the Applicant’s explanation, and rejected the Applicant’s contentions entirely on the basis of those inconsistencies, and credibility. There is nothing to suggest that the Tribunal was in breach of its statutory obligations. As I have noted above, the Applicant had an opportunity to, and did appear, before the First Tribunal. There is no suggestion on the face of the decision or in the evidence before me (the Court Book of departmental and Tribunal documents), or in the Applicant’s submissions today that the First Tribunal acted in breach of its statutory obligations. I consider it was entitled to disbelieve the Applicant as it did.
The Minister also submitted that the grounds, if pressed, were extremely vague, unparticularised and seek to cavil with the merits of that Tribunal’s decision. As there is no detail as to what the Applicant intends in relation to any of the Delegate’s decision, First Tribunal decision or Second Tribunal decision, it would be speculative of me to guess what, if anything, the Applicant would complain of with regard to the First Tribunal decision that would fall within this Court’s jurisdiction on judicial review. As I have described above, the Applicant’s submissions were extremely brief to the point of non‑existent and were only that he really needs to get his visa back in order to work in Australia and he does not want to return to Malaysia. Only after repeated questioning did the Applicant attempt an explanation (see above at [23]) which, construed most beneficially, is asking this Court to undertake a merits review.
I am not persuaded that any application for judicial review of the First Tribunal’s decision that could be encompassed within the grounds presently sought by the Applicant in relation to the Second Tribunal decision has any reasonable prospects. I have concluded that the grounds of review are not reasonably arguable, and would fail.
Ms Butler also submitted that the Minister would suffer prejudice because of the significant delay, and that it is in the interests of the administration of justice that there be finality in the proceeding.
I accept those submissions. I conclude that it would not be in the interests of the administration of justice to grant any extension of time, in this case, in respect of the First Tribunal decision, noting in any event that the Applicant has not sought any such extension of time, or sought review of the First Tribunal decision.
Conclusion
In the circumstances I conclude that the application should be dismissed and the Applicant pay the First Respondent’s costs fixed in the sum of $5,000. I will so order
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Baird.
Date: 26 June 2019
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