CLA15 v Minister for Immigration

[2017] FCCA 2873

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLA15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2873

Catchwords:
MIGRATION – Administrative Appeals Tribunal – where the Tribunal held it did not have jurisdiction – application was patently vexatious – amended application dismissed. 

Legislation:

Federal Circuit Court of Australia Act1999 (Cth), pt.6B

Migration Act 1958 (Cth), ss.412, 476

Migration Regulations 1994, reg.4.31
Tribunals Amalgamation Act 2015 (Cth), s.15AD of Sch.9

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

SZASP v Minister for Immigration and Citizenship [2017] FCA 771

Applicant: CLA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1113 of 2017

Judgment of: Judge Street

Hearing date: 22 November 2017

Date of Last Submission: 22 November 2017

Delivered at: Sydney

Delivered on: 22 November 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms J Davidson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. Grant leave to the first respondent to file and serve an application under Part 6B of the Federal Circuit Court of Australia Act 1999 (Cth) to have the applicant declared a vexatious litigant together with submissions on or before 7 December 2017.

3. Grant leave to the applicant to file and serve any affidavits in answer to that application together with submissions on or before 14 December 2017.

4. The matter be fixed for hearing at 2:15pm on 21 December 2017 if such application is filed.

5. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1113 of 2017

CLA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 March 2017 holding that the Tribunal did not have jurisdiction in respect of a decision of a delegate made on 27 June 2014.

2. The application for review with the Tribunal was lodged on 6 March 2017, well outside the 28 day period required in respect of a valid application under s 412 of the Act and reg 4.31 of the Migration Regulations 1994 (“the Regulations”). The application for review is patently invalid. 

3. The applicant is a citizen of Bangladesh and entered Australia on 27 June 2006 on a subclass TU 573 student visa. The applicant was subsequently granted a series of such visas which ceased on 10 May 2010.  Between 5 December 2010 and 5 April 2013, the applicant held a subclass VC 485 temporary graduate visa. After its expiry, the applicant was granted a bridging visa and on 10 December 2013, lodged an application for protection. It was that application for protection that was refused by a delegate on 27 June 2014.  Moreover, the applicant made an application for review of that decision which was affirmed on 23 April 2015. 

4. The applicant lodged a current application giving rise to the Tribunal’s decision on 6 March 2017. Following the lodging of that application, on 15 March 2017, a communication took place between the applicant and an officer of the Tribunal in which the applicant was informed that the application appeared to be invalid. The applicant sent an email indicating he did not wish to engage in relation to the contention that the application was invalid and wanted to receive no communication.

5. The Tribunal proceeded to consider whether or not the application was valid and whether it had jurisdiction. The Tribunal correctly concluded that it did not have jurisdiction in respect of the application that was lodged.

Before this Court

1. The application filed in this Court on 10 April 2017 seeking to challenge the decision of the Tribunal was amended on 12 October 2017. The amendments to the application identify on their face what appear to be unintelligible grounds and fail to identify any proper or arguable case of jurisdictional error by the Tribunal. 

2. The applicant filed four affidavits in the proceedings and relied upon three. Two of those affidavits were relied upon as articulating submissions in support of the applicant’s case. None of the applicant’s written submissions advanced by the applicant identified any arguable case of jurisdictional error by the Tribunal in holding that it had no jurisdiction.

3. Further, as the first respondent pointed out on 1 June 2015, subitem 15AD(1) of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) provided that a person may not apply to the AAT for review of a decision on or after the commencement date if the person made an application or purported application to a Tribunal for review of a decision before the commencement date. The definition of Tribunal includes the RRT. In the present case, the applicant made an application to the RRT which was heard and fully determined before 1 June 2017. Accordingly, the applicant was not permitted to make a further application to the AAT for review of the same decision.

4. Further, there is authority confirming that there is no jurisdiction to conduct a second merits review of a delegate’s decision in relation to an application for a protection visa where the statutory duty to review that decision has already been discharged: SZASP v Minister for Immigration and Citizenship [2017] FCA 771 at [4] which cites a number of earlier cases.

Before this Court

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or deny a procedural fairness to the applicant. The Court explained that in this regard, the Court was considering whether the Tribunal’s decision that it had no jurisdiction was unlawful or unfair. The Court identified that the applicant had had a communication in which he had conveyed he did not wish to be heard in respect of whether the application was invalid.

2. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant sought to advance arguments concerning the concept of whether his application was a duplicate apparently upon some misguided concept of understanding of s 15AD of the Act referred to above. Nothing said by the applicant in that regard identified any arguable case of jurisdictional error. 

4. The applicant also referred to s 416 of the Act to suggest that the Tribunal should have entertained and considered his application. Section 416 of the Act does not give rise to the application that the applicant lodged being valid or the Tribunal having jurisdiction in respect to the application filed by the applicant in the present case. 

5. The application on its face was patently vexatious. The Court indicated at the time of explaining the nature of the hearing to the applicant that it would consider if it found that the application was vexatious, whether a direction should be made in relation to permitting an application to be made under Part 6B of the Federal Circuit Court of Australia Act1999 (Cth) in respect of the applicant and that the applicant be heard in that regard.

6. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. The application in the present case was vexatious and an abuse of process. No jurisdictional error was made in respect of the conclusion by the Tribunal that it had no jurisdiction is made out.

7. The amended application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 December 2017