BZV21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 625
•18 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BZV21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 625
File number(s): MLG 1519 of 2021 Judgment of: JUDGE GOODCHILD Date of judgment: 18 August 2023 Catchwords: PRACTICE AND PROCEDURE – MIGRATION – application for summary dismissal of proceeding in relation to a decision by the Administrative Appeals Tribunal – Tribunal previously considered and determined an application for review of a delegate’s decision – no reasonable prospects of success – application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(2)(b)
Federal Court of Australia Act 1976 (Cth) s 31A
Migration Act 1958 (Cth) s 426A(1F)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Rule 13.13(a)
Cases cited: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedcFamC2G 368
BVG17 v BVH17 [2019] FCAFC 17; (2019) 268 FCR 448
Kraues v Honourable Michaelia Cash [2022] FedCFamC2G 442
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of hearing: 17 July 2023 Place: Sydney Applicant: In Person Solicitor for the Respondents: Mr A Cunynghame of Sparke Helmore ORDERS
MLG 1519 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BZV21
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
18 August 2023
THE COURT ORDERS THAT:
1.The proceeding is dismissed pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
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
The applicant seeks to apply for a judicial review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 22 June 2021.
By the response filed 3 July 2023, the first respondent (the “Minister”) seeks an order that the proceeding be summarily dismissal pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “ GFL Rules”).
Rules 13.13 (a) to (c) of the Rules relevantly provide that the Court may order that a proceeding be stayed, or dismissed generally if the Court is satisfied that the party prosecuting the proceeding has no reasonable prospect of successfully prosecuting the proceeding, the proceeding or claim is frivolous or vexatious, or if the proceeding is an abuse of process.
The Minister submits the applicant has no reasonable prospect of successfully prosecuting his claim.
BACKGROUND
The applicant in these proceedings, a citizen of Thailand, lodged an application for a Protection (Class XA) (Subclass 866) visa on 25 July 2017.
On 15 November 2017, a delegate of the Minister made a decision refusing to grant the applicant a protection visa.
On 2 December 2017 the applicant applied to the Tribunal for review of the delegate’s decision. In that review application, the applicant provided an email address for service of documents.
On 24 November 2020, the Tribunal dismissed the application, pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the “Act”), as the applicant did not attend the scheduled hearing.
On 25 November 2020, a copy of that decision was emailed by the Tribunal to the applicant at his nominated email address, as it was required to do by s 426B(5) of the Act. By correspondence attached to the email the applicant was informed he could make an application to reinstate his review application by 9 December 2020.
The applicant did not make any application to reinstate his application and, pursuant to s 426A(1E) of the Act, the Tribunal confirmed its decision (the Tribunal’s first decision) to dismiss the application on 10 December 2020.
Relevantly, s 426A(1F) provides that:
If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
On 10 December 2020, the applicant again applied to the Tribunal for review of the delegate’s decision.
On 16 December 2020, the Tribunal invited the applicant to comment on the validity of the application by 4 January 2021. By correspondence to the applicant, the Tribunal informed the applicant that:
It appears that your application is not a valid application as an application for review of the same delegate’s decision was previously made to the Tribunal. The case number for that first application is 1730339. The Tribunal made a decision on that application on 10 December 2020. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision.
On 22 June 2021, the Tribunal decided that it had no jurisdiction to determine the application as the applicant had previously made an application for review of the same delegate’s decision, and that a prior Tribunal decision had been made in relation to that application on 10 December 2020 (the “Tribunal’s second decision”). The Tribunal emailed the applicant a notification and written reasons for its no jurisdiction decision on 24 June 2021.
By an application filed in this Court on 2 July 2021, the applicant sought judicial review of the Tribunal’s second decision, the no jurisdiction decision, relying upon the following grounds:
1.I am come from Thailand,and I was came to Australia for study with the student visa.but I am hardly speak and understand word of English and has landed in real trouble. I came across a person who claimed to be a visa expert and advised that would help me to complete my visa application before my visa expired.
2.My application for review of a decision of a delegate of the Minister for Immigration on 15 November 2017 to refuse to grant a protection visa. The review application was lodged with the Tribunal on 10 December 2020. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision. What soever.
3.My application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application on 10 December 2020: AAT case 1730339. Where the Tribunal has received a valid application for review of a review able decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a review able decision and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice However due to this barrier for people who and I wish to make refugee visa application so that people could remain in Australia to be safe from trouble back in their home country.
4.The Tribunal wrote to me and raised its view that it did not have jurisdiction to review the refusal decision because a decision had already been made by the Tribunal. The Tribunal received no response from me I am would like to explain that why I can not return to Thailand if I return my life is in danger in my personal reason it is very danger by boss abducted me and threatened to kill me .So that hard time even now on my embarrassing including the pressure of not understanding the process and the expense is stressful I can not make any decision I did decide to not response to the AAT and advised the AAT it was beyond my control,my case and my application very sensitivity of my clime and potential problem I would face upon return to my home country.
5.AAT member has considered my request however, decided not to accept my application and dismissed my application. AAT allows people did comment or did not comment however but AAT never accept anyone’s claim. I strong believe that AAT member has not used his discretion in threat in my matter and I believe this is unfair treatment by AAT.I have been already suffering from consistent threat in my home country if I had to go back and my hope was on AAT to accept my matter so this application could be heard before the member.
6.AAT has made error in law while dismissing my matter and refused to accept this application would like to request FCC to accept my matter and set up new orders and replace orders made by AAT as AAT has made a jurisdictional error when decided not accept this matter. I don’t see a reason why AAT has Natural Justice when they are not going to accept circumstances beyond my control.
7.New order will allow me to present this matter before the FCC and I would have fair outcome on
8.I would like to request to FCC to set aside old orders and replace by new order and accept my application for review as a valid application and decide on this matter at FCC.
(As per original)
On 17 July 2023, the applicant’s application proceeded to a hearing before me. At the hearing the applicant appeared unrepresented. An interpreter in the Thai language was present to interpret the proceedings for the applicant.
LEGAL PRINCIPLES
The question for this Court in determining whether to summarily dismiss the application, is whether the Court is satisfied that the applicant has no reasonable prospects of establishing that the Tribunal’s decision is not affected by jurisdictional error within the meaning of r 13.13(a) of the GFL Rules, or s 143(2)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCoA Act).[1]
[1] The FCFCOA Act and the GFL Rules came into effect on 1 September 2021, replacing the Federal Circuit Court of Australia Act 1999 (Cth) (“FCC Act”) and the Federal Circuit Court Rules 2001 (“FCC Rules”).
Rule 13.13 of the Rules is relevantly expressed in the same terms as the antecedent under r 13.10 of the FCC Rules: see AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedcFamC2G 368 per Judge Given at [19]. Section 143 of the FCFCoA Act is in substantially the same terms as s 31A of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”): see BVG17 v BVH17 [2019] FCAFC 17; (2019) 268 FCR 448 per Perry J at [158] and Kraues v Honourable Michaelia Cash [2022] FedCFamC2G 442 per Judge Manousaridis at [65].
The principles governing the exercise of the power conferred by s 31A were set out by Perry J in Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7], in keeping with the High Court’s decision in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118.
The principles governing the application of s 31A are well established and can be summarised as follows:
(1)The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).
(2)With respect to the scope of s 31A [of the FCA Act], French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:
… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms limited to those categories.
(3)Section 31A [set] a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless” : Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).
(4)An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).
At the hearing on 17 July 2023, I gave the applicant an opportunity to elaborate on the grounds of review identified in his judicial review application, and to outline concerns that he had with the Tribunal’s decision. Nothing the applicant said to me was relevant in advancing the prospects of success of his case.
After having the written submissions of the Minister interpreted for him, I asked the applicant if there was anything he would like to say with regards to the Minister’s contention that the applicant had made two applications of the same decision. After repeating my question a second time, the applicant confirmed that he understood the question. The applicant said to me that he had asked a friend to help him and that may explain “why there was a repetition”. He said that he might have been confused.
While the applicant’s oral submissions did not otherwise raise any allegation of jurisdictional error or any issue of the sort that this Court can address, in its duty to assist self-represented litigants, the Court will consider for itself whether any arguable case of error arises in the Tribunal’s second decision.
For completeness, I set out the Tribunal’s second decision below
The Tribunal’s Decision
APPLICATION FOR REVIEW1.THIS IS AN APPLICATION FOR REVIEW OF A DECISION OF A DELEGATE OF THE Minister for Immigration on 15 November 2017 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (The Act).
2.The review application was lodged with the Tribunal on 10 December 2020. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
3.An application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application on 10 December 2020: AAT case 1730339. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZZASP v MIAC [2007] FCA 771.
4.The Tribunal wrote to the applicant and raised its view that it did not have jurisdiction to review the refusal decision because a decision had already been made by the Tribunal. The Tribunal received no response from the applicant.
5.As the delegate’s decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.
DECISION
6.The Tribunal does not have jurisdiction in this matter.
The Applicant’s “Grounds of Review”
The applicant’s grounds of judicial review are not particularised and do not explain the nature of the jurisdictional errors that the applicant alleged were committed by the Tribunal in making its no jurisdiction decision. I adopt the Ministers categorisation of the applicant’s grounds of review.
Grounds one to five set out the background to the matter, and invite the Court to engage in impermissible merits review of the Tribunal’s first decision and summarises the Tribunal’s second decision (the no jurisdiction decision).
Ground six claims that the Tribunal erred in “dismissing” the matter and “refused to accept” the application for review and Ground five complains of “unfair treatment” by the Tribunal. These claims are not particularised, and for that reason disclose no reasonably arguable case that the Tribunal was incorrect in deciding it did not have jurisdiction.
In any event, there is no question that once “the Tribunal has delivered its decision free from jurisdictional error, it is functus officio”, and that “[o]nce the statutory function is performed, there is no further function authorised under the Act for the Tribunal to carry out and it has no power to reopen the delegate’s decision” as per Bennet J in SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940, at [21].
The applicant therefore, does not have reasonable prospects of succeeding on these claims.
Grounds seven and eight seek orders from the Court. These grounds do not allege any jurisdictional error on the part of the Tribunal.
CONCLUSION
In the circumstances where the Tribunal was correct to find that it had no jurisdiction where an earlier Tribunal made a valid decision finding that it did not have jurisdiction in the matter, I find that the applicant’s application has no prospects of success. I summarily dismiss the claim.
31 I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild.
Associate:
Dated: 18 August 2023
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