CJG18 v Minister for Home Affairs
[2019] FCCA 1402
•21 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJG18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1402 |
| Catchwords: MIGRATION – PRACTICE & PROCEDURE – Application to dismiss application for an order extending time under s.477(2) of the Migration Act 1958 (Cth) on the ground that the applicant has no reasonable prospect of successfully prosecuting the application for extension of time – application for extension of time dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.10(a) |
| Cases cited: SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175 |
| Applicant: | CJG18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1307 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 21 May 2019 |
| Date of Last Submission: | 21 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2019 |
REPRESENTATION
| Applicant in person, assisted by an interpreter. |
| Solicitors for the First Respondent: | Mr H Gao of Australian Government Solicitor |
ORDERS
Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) the applicant’s application for an extension of time made pursuant to s.477(2) of the Migration Act 1958 (Cth) and filed on 9 May 2018 be dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1307 of 2018
| CJG18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore - Revised from Transcript)
Before the Court is an application in a case filed pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) for an order that an application made under s.477(2) of the Migration Act 1958 (Cth) (Act) be summarily dismissed on the ground that the applicant has no reasonable prospects of successfully prosecuting that application.
The application for an order under s.477(2) of the Act is directed to a decision made by the second respondent (Tribunal) on 5 January 2018. In that decision the Tribunal decided it did not have jurisdiction to review an application for review lodged by the applicant on 5 December 2017. The form of application for review identified the decision to be reviewed as “visa refusal”, and the date of the refusal is said to be 15 November 2017. That appears to be intended to be a reference to a decision made on 14 November 2017 by a differently constituted Tribunal that the Tribunal did not have jurisdiction to review an application for review the applicant had lodged on 6 November 2017. That application for review, together with a number of other applications for review the applicant made before 6 November 2017, related to a decision made by a delegate of the first respondent (Minister) on 7 March 2017 not to grant the applicant a protection visa. In its decision of 5 January 2018 the Tribunal treated the application for review the applicant made to it on 5 December 2017 to be an application for review of the delegate’s decision of 7 March 2017.
The Tribunal decided it had no jurisdiction to review the delegate’s decision because the Tribunal had already considered an application for review the applicant made in relation to the delegate’s decision. The Tribunal considered that application in a decision made on 24 July 2017 in which the Tribunal affirmed the delegate’s decision. In its decision of 5 January 2018 the Tribunal was of the view that it did not have power to review the delegate’s decision because the Tribunal was of the view it could not review a decision more than once.
Returning to the application made to this Court, the applicant requires an order under s.477(2) of the Act because he filed that application in this Court on 9 May 2018, which is more than the 35-day period prescribed by s.477(1) of the Act. Under s.477(2) of the Act, the Court may order an extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order must be made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. As Foster J noted in SZRIQ v Federal Magistrates Court of Australia:[1]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b)Whether there is any prejudice to the Minister;
(c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
[1] [2013] FCA 1284, at [47]
His Honour further said these factors “cannot be said to exhaust all potentially relevant factors in every case” because they “are simply sensible guidelines developed by the Courts which have utility in most cases”.[2]
[2] [2013] FCA 1284, at [48]
The question that I must decide is whether the applicant has reasonable prospects, or, more accurately, whether he does not have reasonable prospects of obtaining an order under s.477(2) of the Act. I propose first to consider whether it is not reasonably arguable that the applicant’s substantive case is sufficiently arguable to justify the extension of time. That may be reduced to the more specific question of whether the applicant has a sufficiently arguable case that the Tribunal was incorrect to find that it did not have jurisdiction to consider the application for review of the delegate’s decision made on 7 March 2017 because, on 24 July 2017, the Tribunal had affirmed the delegate’s decision not to grant the applicant a protection visa.
Whether the Tribunal has jurisdiction to consider an application for a review of a decision that has already been the subject of an application for review to the Tribunal and which the Tribunal has determined has been considered in a number of cases. It is sufficient if I refer to the judgment of Moore J in SZBWJ v Minister for Immigration and Citizenship.[3] As noted by his Honour, the central issue in that case was whether the Tribunal is bound to review a decision of a delegate if the application for review to the Tribunal is made within time, notwithstanding that the delegate’s decision had already been affirmed by the Tribunal. His Honour concluded the Tribunal did not have the power to review a decision of a delegate that had already been reviewed by the Tribunal.
[19] In considering the operation of the relevant statutory provisions, I agree with Goldberg J in Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 76 FCR 301, where his Honour concluded that the Tribunal did not possess the power to reopen or reconsider a decision that it had previously made. His Honour said (at 317):
When one takes into account the statutory provisions to which I have referred and in particular has regard to the provisions relating to the opportunity to make a further application to the Minister and a further application to the Tribunal, I do not consider it would be proper, in the absence of a clear legislative intention, to imply a power in the Tribunal to reconsider or re-open a decision.
[3] [2008] FCA 1175
. . . .
[21] However, subsequent authority supports the proposition that the Tribunal was correct in deciding that it did not have jurisdiction to consider the applicants second review application As the High Court said in Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 at [30]:
It would be inconsistent with [the] scheme [of the Act] and contrary to the ordinary reading of Div 2 of Pt 7 of the Act to treat the decision of the tribunal as provisional in nature. 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 by reason of later changed circumstances.
22. The High Court's decision in Thiyagarajah accords with the view I took in SZASO v MIAC [2007] FCA 771 at [4], where I said that "the Tribunal's conclusion that it no longer had jurisdiction to review the delegate's decision, having already discharged its functions under the Act to review the delegate's decision, was correct". I also agree with the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 which concluded (at [45]) that "[a]n application for review may not be reopened in a fashion which avoids the limitations imposed by ss 48A and 48B of the Act upon further applications for protection visas".
The position stated in SZBWJ and the cases referred to in his Honour’s reasons for judgment has been confirmed by the inclusion in 2014 of s.430(2A) of the Act:
The Tribunal has no power to vary or revoke a decision to which subsection 2 applies after the day and time the written statement is made.
I then turn to the grounds of application stated in the application the applicant filed. These are as follows:
1. The decision is affected by an Arrow law [sic].
2. The decision was made without solid proof.
3. It is requested to sent my application to Administration Appeals tribunal for consideration [sic].
There is nothing in these grounds that raise any arguable case that the Tribunal was incorrect in deciding it had no jurisdiction; and there is nothing to raise any doubts about the Tribunal’s conclusion. Also, there is nothing in the grounds of application that suggests the applicant claims the Tribunal made any jurisdictional error in its decision of 24 July 2017 affirming the delegate’s decision of 7 March 2017. There is, therefore, no arguable issue, or, indeed, any issue that the Tribunal’s decision of 24 July 2017 is a nullity.
In the light of SZBWJ and the cases referred to by Moore J in that case, and more emphatically because of s.430(2A) of the Act, it is beyond argument the Tribunal was correct in concluding it did not have power to review the delegate’s decision of 7 March 2017 because that decision had already been reviewed by the Tribunal. Given this conclusion, and even if all other discretionary factors were to favour the applicant, the applicant has no reasonable prospects of obtaining an order under s.477(2) of the Act. In fact, the applicant would have no prospects of obtaining such order.
In those circumstances I propose to make an order under r.13.10(a) of the FCC Rules dismissing the application, and I will do so in a moment.
RECORDED: NOT TRANSCRIBED
A moment ago I completed delivering my reasons for judgment in the matter. I indicated that I propose to dismiss the proceeding. Mr Gao, who appeared for the Minister, correctly brought to my attention that the appropriate order should be the order that is sought in the application in a case the Minister filed, and that is that what should be dismissed is the applicant’s application for an extension of time. I will make an order to that effect in a moment.
After I delivered my reasons, Mr Gao applied for an order that the applicant may pay the Minister’s costs, and he applied that I assess those costs in the amount of $3,737. The applicant said he was not in a position to pay those costs. As I informed the applicant, that is not usually a reason why an order for costs should not be made. I am satisfied that the usual order as to costs should be made in this case, by which I mean the applicant should pay the Minister’s costs. And I am satisfied that the amount the Minister seeks is reasonable.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 29 May 2019
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