Ceb18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1103
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CEB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1103
File number: MLG 1136 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 30 November 2023 Catchwords: MIGRATION– Protection Visa – Applicant seeks judicial review of Tribunal decision of his fourth application to Tribunal for review of a delegate’s decision – Tribunal correct in finding it had no jurisdiction to reconsider or re-open the Delegate’s decision – Not in the interests of justice to extend time where application had no reasonable prospects of success – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 424A, 426A, 477 Cases cited: Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; [1997] FCA 551
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343; [2000] HCA 9
MZZYV v Minister for Immigration and Border Protection [2016] FCA 957
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 81; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of last submissions: 20 November 2023 Date of hearing: 20 November 2023 Place: Melbourne Applicant: Appearing in person Solicitor for the First Respondent: Sparke Helmore ORDERS
MLG 1136 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CEB18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,189.38.
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 CHAMPION:
ISSUES FOR DETERMINATION
The Applicant made six applications to the Administrative Appeals Tribunal for review of a decision of a departmental delegate to refuse to grant him a protection visa. For convenience, I have referred to the Tribunals which considered the applications as the First, Second, Third Tribunal etc. accordingly. The Applicant has offered no explanation as to the multiplicity of review applications other than that he handed the process over to a friend.
The Applicant seeks an extension of time to bring a judicial review application as to the decision of the Fourth Tribunal. He has not challenged any other Tribunal decision refusing to grant him a protection visa.
On the face of his judicial review application, he raises two issues. First, whether the Tribunal complied with s. 424A of the Migration Act 1958 (Cth) which ordinarily mandates the Tribunal to put certain adverse information to a review applicant for comment or response. The second issue he raises is whether the Tribunal otherwise denied the Applicant procedural fairness.
It is not in the interests of the administration of justice to extend time because the Applicant’s underlying application does not have reasonable prospects of success because of a fundamental threshold problem that the First Tribunal disposed of – to finality – the Applicant’s merits review application. That is, the First Tribunal made a final decision. Neither the Second Tribunal nor any subsequent Tribunal had the jurisdiction to reconsider or re-open the First Tribunal’s final decision on the Applicant’s merits review application.
The Fourth Tribunal found (correctly) that “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” (CB92, [6]).
The Applicant has not challenged the First Tribunal’s decision. Because the Fourth Tribunal did not have jurisdiction to reopen or reconsider the First Tribunal’s decision, the obligations under s. 424A of the Act were not engaged on the Applicant’s fourth application. The Fourth Tribunal complied with any residual common law procedural fairness obligations. Finally, even if the Fourth Tribunal denied the Applicant procedural fairness (and I find that it did not), the Applicant did not suffer any practical injustice.
I will dismiss the application. My reasons follow.
BACKGROUND AND PROCEDURAL HISTORY
On 30 April 2018 the Applicant made an application in this Court, in which he seeks a remedy as to the decision of the Fourth Tribunal made on 27 July 2017 (CB91–93). Because the Applicant commenced his application some nine months out of time, the Applicant requires an extension of time under s. 477(2) of the Act.
The Applicant is a citizen of Malaysia (CB2) and arrived in Australia on 28 January 2016 on a Tourist visa (CB48).
On 22 April 2016 he applied for the Protection (Class XA) visa (CB1–10). He claimed that he feared harm in Malaysia from loan sharks because his business partner accrued various debts. The Applicant claimed that a loan shark had previously damaged his car and house, and that he feared he would be killed if he returned to Malaysia (CB32).
On 15 June 2016 a departmental delegate refused the Applicant’s Protection visa application (Delegate’s decision; CB48–60).
As noted, the Applicant subsequently made six applications for merits review to the Tribunal.
On 13 February 2017 the First Tribunal dismissed the application under s. 426A(1A)(b) of the Act when the Applicant did not appear at the scheduled hearing. On 1 March 2017, in the absence of a reinstatement application, the First Tribunal confirmed its decision pursuant to s. 426A(1E). At that point in time, the Tribunal had disposed of — to finality — the application for review. The Applicant has not made any judicial review application in respect of the First Tribunal’s decisions on 13 February 2017 or 1 March 2017.
On 13 April 2017 and 5 June 2017 following the Applicant’s second and third applications for review of the Delegate’s decision, each of the Second and Third Tribunals made a decision that it did not have jurisdiction to reconsider the Delegate’s decision in circumstances in which the First Tribunal had finally disposed of the merits review application.
On 6 June 2017 the Applicant made his fourth application to the Fourth Tribunal. On 7 June 2017 the Tribunal sent correspondence to the Applicant titled “Acknowledgement of Application”, noting that the “validity of your application has not yet been assessed” and stating that “if you wish to provide material written arguments for us to consider, you should do so as soon as possible” (CB81–83).
As noted, on 27 July 2017, the Fourth Tribunal made a decision that it did not have jurisdiction to reconsider the Delegate’s decision, because the First Tribunal had completed its statutory duty and the Delegate’s decision was no longer a reviewable decision.
The Applicant made a fifth and sixth application to the Tribunal for review of the delegate’s 15 June 2016 decision. The Fifth and Sixth Tribunals made two further decisions on 25 August 2017 (CB96) and 3 October 2017 (CB101) dismissing those applications because each of those tribunals concluded it did not have jurisdiction to reconsider the delegate’s decision. The Applicant has not made any application to the Court as to the decisions of the Fifth Tribunal or the Sixth Tribunal.
JUDICIAL REVIEW APPLICATION
The Applicant seeks judicial review of the Fourth Tribunal’s decision. Notwithstanding court orders for the filing of written submissions, the Applicant did not file any written material other than his application with the Court. His oral submissions focused upon certain circumstances of family hardship, which although of understandable concern to the Applicant, were not relevant to his judicial review application.
The Applicant supported his application for an extension of time on the following two grounds:
1.I was not aware of the limit for the judicial review in Court and I required extension of time to seek justice where I believe there was a lack of procedural fairness.
2.The Applicant met the key elements of the Subclass 866 visa by the Tribunal member did not consider and therefore committed factual and legal error
The Applicant set out his grounds for judicial review in a narrative form as follows:
1.I came to Australia as a visitor visa holder and made an application for further visa and made an application for protection visa. Protection visa application was refuse by The Tribunal then I lodged an application for review of my visa application.
2.I do not appear and attend the hearing by The Tribunal as I have problem to open my email. Once I figured it out my password for the email address, it’s already late to attend the hearing by The Tribunal. I like to make an appeal application to the Federal Circuit Court to seek justice on my matter.
3.I would like to request to Federal Circuit Court to accept my application and have a fresh look to this matter and set new orders replace orders made by The Tribunal.
4.I would like to request to Federal Circuit Court to set aside old orders made by The Tribunal and decide on this matter by having another look at this matter and I am sure that Federal Circuit Court would accept my claim and will set new orders and replaced old orders.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, make no attempt to, and did not, comply with the requirements set out in section 424A of the Act.
[As written]
Should the Court grant an extension of time?
In assessing whether it is in the interests of the administration of justice to extend time under s. 477(2) of the Act, the Court may “look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application”: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 81; [2022] HCA 28, [12].
I will consider the merits of the substantive judicial review application before considering the additional extension of time issues.
The First Tribunal disposed of the review application
Once the Tribunal performed its statutory function there was no further function or act for the Tribunal under the statute to perform and the Tribunal did not have jurisdiction to review, reconsider or reopen the Delegate’s decision: Jayasinghe v. Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; [1997] FCA 551, 311. In Minister for Immigration and Multicultural Affairs v Thiyagarajah(2000) 199 CLR 343; [2000] HCA 9 the plurality held at [30]: “In the situation where the tribunal had, without reviewable error, disposed of an application for review of the decision of the delegate […], the Act did not confer upon the tribunal any authority subsequently to reconsider the decision of the delegate […]”.
In this case, the First Tribunal by its dismissal decision on 13 February 2017 and its confirmation decision on 1 March 2017 “disposed of” the application: Jayasinghe, Thiyagarajah (above). It disposed of the review application on a final basis. The Applicant makes no allegation that the First Tribunal made a reviewable error. As a result, as I have already set out, the Fourth Tribunal held (correctly in my view) that it lacked jurisdiction because the First Tribunal had already dealt with the matter to finality and the Tribunal processes were spent (CB92, [6]). The scheme of the Act does not provide for second and subsequent merit reviews of the same decision of a delegate.
In my view, the Applicant’s proposed grounds of review as to the Fourth Tribunal’s decision have no reasonable prospects of success because of that fundamental threshold problem.
Proposed Grounds for Review
Section 424A
The Applicant submits that the Tribunal failed to “issue any writing invitation under section 424A of the Act and, make [sic] no attempt to, and did not, comply with the requirements set out in section 424A of the Act”.
The Applicant submitted that he did not attend the Tribunal hearing as he had a problem opening his email because of a password issue. Any explanation as to why the Applicant did not attend the First Tribunal hearing is not relevant because the Applicant has not challenged the First Tribunal’s decision in this Court. As to the Fourth Tribunal, the Fourth Tribunal acknowledged the receipt of the Applicant’s application but did not hold a hearing because it lacked jurisdiction.
Because this was the Applicant’s fourth application, s. 424A of the Act was not engaged. Had the Applicant appeared before that First Tribunal, the First Tribunal may have had obligations under s. 424A. As it happened, the First Tribunal adopted the summary process under s. 426A in default of the Applicant’s appearance and when it did not receive any application for reinstatement from the Applicant. Because the Fourth Tribunal did not have jurisdiction as to the application, the jurisdictional foundation for an obligation to put adverse information to the Applicant under s. 424A was absent. That is, by the time of the Fourth Tribunal there was no “decision under review” which engaged the Tribunal’s obligations under s. 424A: SZEYK v Minister for Immigration & Citizenship [2008] FCA 1940, [21].
Other common law procedural fairness obligations
In SZEYK, because there was not a decision under review and therefore the Tribunal was in a situation outside the parameters of the exhaustive statement of the statutory natural justice hearing rule set out in s. 422B of the Act, Bennett J observed at [36] that the “Tribunal may have been obliged to provide common law natural justice and procedural fairness in respect of its consideration of whether it had jurisdiction or authorisation to review the application.”
The Fourth Tribunal’s letter dated 7 June 2017 invited the Applicant to “provide material or written arguments for us to consider”. In SZEYK, Bennett J (at [38]) observed of a similar letter sent by the Tribunal in that case that it: “satisfied the […] Tribunal’s obligations to accord the applicant natural justice and procedural fairness, in circumstances where the applicant did not avail himself of the opportunity to make a submission or seek a hearing.” In this case, the Applicant did not submit before me that he made a submission or provided any evidence to the Fourth Tribunal in the window of time between the Tribunal’s letter dated 6 June 2017 and the Fourth Tribunal’s decision on 27 July 2017.
Finally, even if the Fourth Tribunal denied the Applicant procedural fairness (which in my view it did not) “no practical injustice flows from it.” Because the Tribunal lacked jurisdiction any opportunity to address the Fourth Tribunal on a question of jurisdiction was a “hollow opportunity”: SZEYK, [39].
The Applicant has not persuaded me that his proposed grounds of review have reasonable prospects of success such that it is in the interests of justice to extend time. It is therefore strictly unnecessary to consider the Applicant’s explanations for delay. Nonetheless, I note that the delay was significant, and the Applicant commenced this application some 9 months out of time. The Applicant claimed that he “was not aware of the limit.” The fact that a “litigant is ignorant of a timeframe for lodging an appeal is generally not a satisfactory reason for the delay”: MZZYV v Minister for Immigration and Border Protection [2016] FCA 957, [25]. The Applicant has not provided a satisfactory explanation of the delay. I acknowledge that the denial of an extension of time has a substantial impact on the Applicant. The First Respondent claims no prejudice. Mere absence of prejudice is not a sufficient reason for the granting of an extension of time. The Applicant also submitted, at least indirectly, that time should be extended because his underlying application had merit because he met “the key elements of the Subclass 866 visa”. As detailed above, the underlying application lacks merit.
CONCLUSION
The application for an extension of time is dismissed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 30 November 2023
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