DDM21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1198
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DDM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1198
File number: MLG 2295 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 14 December 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – extension of time application – lengthy delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused. Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Migration Act 1958 (Cth), ss 411, 412, 414, 441A, 441C, 477 and Division 4 of Part 7
Cases cited: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
BBD23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 883
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
CLY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 759
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Gallo v Dawson [1990] HCA 30
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301
Jess v Scott (1986) 12 FCR 187
Kioa v West (1985) 159 CLR 550
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164
SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175
SZEYK v Minister for Immigration & Anor [2008] FMCA 1354
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WZAVO as litigation guardian for WZAVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 108
Division: Division 2 General Federal Law Number of paragraphs: 110 Date of hearing: 10 November 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr A Anastasi Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2295 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DDM21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) be dismissed.
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 KENDALL:
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (“CB”) 6, 12 & 40-42). He first arrived in Australia in November 2016 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 19, 41 & 48).
On 12 December 2016, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-39). The applicant provided copies of his Malaysian passport and identity cards with that visa application (CB 40-42).
On 21 March 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 48-60). The applicant was notified of the delegate’s decision by letter dated 21 March 2017 (CB 44-47). The notification letter was sent to the applicant via email, together with a copy of the delegate’s decision (CB 43-44).
On 6 April 2017, the applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (the “first Tribunal application”) (CB 66).
On 28 September 2017, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (the “first Tribunal decision”) (CB 65-81). The applicant was notified of that first Tribunal decision by letter dated 28 September 2017 (sent to the applicant via email that same day, being on 28 September 2017) (CB 63-64).
On 24 October 2017, the applicant again applied to the Tribunal for review of the visa refusal decision (the “second Tribunal application”) (CB 85-86). It is unclear to the Court from the second Tribunal application whether the applicant was seeking further review of the delegate’s decision (dated 21 March 2017) or the first Tribunal decision (dated 28 September 2017). This is because the second Tribunal application references the Department file number and details but noted the “date of decision” to be reviewed as being 28 September 2017. This issue will be discussed further below.
In that second Tribunal application, the applicant indicated that all correspondence should be directed to him (being the “review applicant”) and provided the Tribunal with an email address at which to receive that correspondence (CB 86).
On 14 December 2017, the Tribunal determined that it did not have jurisdiction in the matter because “the delegate’s decision ha[d] already been the subject of a valid review by the Tribunal” (the “Tribunal’s no jurisdiction decision”) (CB 97-98). The applicant was notified of the Tribunal’s no jurisdiction decision by letter dated 15 December 2017 (sent to the applicant via email that same day, being on 15 December 2017, using the email address provided by the applicant in the second Tribunal application, together with a copy of the Tribunal’s no jurisdiction decision) (CB 95-96).
Also included with the notification of the Tribunal’s no jurisdiction decision was an information sheet containing “[i]nformation about decisions” (CB 99-101). That information sheet provided the applicant with information in relation to how he could seek review of the Tribunal’s no jurisdiction decision and relevantly provided as follows (CB 100):
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
On 9 September 2021, the applicant applied to this Court for judicial review of the Tribunal’s decision (CB 102-107). The application was accompanied by an affidavit annexing a copy of the Tribunal’s no jurisdiction decision and associated notification letter (CB 108-113). Unfortunately, that application was filed approximately three years and eight months outside of the 35-day time limit specified in s 477 of the Migration Act 1958 (Cth) (the “Act”).
Accordingly, the applicant requires an extension of time to pursue his substantive proceeding in this Court.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court concludes that an extension of time should not be granted.
CONSIDERATION
The materials before the Court include the application for an extension of time and supporting affidavit, both filed by the applicant on 9 September 2021, a court book numbering 116 pages (marked as Exhibit 1), written submissions and a list of authorities, both filed on behalf of the Minister on 3 November 2023 and an affidavit of service of Jared Percy Mintz affirmed on 9 November 2023 (and filed in this Court on 10 November 2023).
The Court notes that on 17 March 2023, procedural orders were made by Registrar Carney of this Court, giving the applicant an opportunity to file an amended application, any affidavits or a supplementary court book and written submissions.
On the morning of the hearing in this Court (being on 10 November 2023), the applicant sent an email to my Chambers with written submissions from the applicant. That material (which will be discussed further below) was marked as Exhibit 2 at the hearing.
The applicant appeared before this Court without legal representation. He was assisted at the hearing by an interpreter in the Malay language.
The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was not legally represented, the Court explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decisions. It was further noted that, in this matter, the Tribunal’s no jurisdiction decision was dated 14 December 2017. The date by which the applicant was required to file his application in this Court was 18 January 2018. Unfortunately, the applicant did not file his substantive application in this Court until 9 September 2021. Hence, as explained to the applicant, the delay in this matter is 1,330 days.
The Court explained that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided both “grounds” and “written submissions” (in Exhibit 2) explaining why he believes that the extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting, again, that the applicant appeared without any legal assistance, the Court outlined to him that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that, when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error.
The Court invited the applicant to address each of the factors outlined above and highlight anything that he considered relevant to his request for an extension of time. The applicant’s responses are discussed in the consideration that follows.
Length of delay
As this Court has previously noted, an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As outlined above (at [18]), the delay in this matter is 1,330 days. This is an inordinate delay and weighs heavily against the granting of an extension of time.
Prejudice
In written submissions before this Court, the Minister conceded that there was no prejudice to him in granting an extension of time “that could not be addressed through an order for costs”.
This weighs in favour of granting the extension of time.
Explanation
The longer the delay in filing an application, the more satisfactory the explanation for that delay needs to be: Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 (“Manna”) at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
Here, the applicant’s “grounds” for an extension of time provide as follows (without alteration):
1.I DID NOT HAVE ENOUGH MONEY FOR THE COURT APPEAL PROCESS AT THE TIME.
2.I ALSO CAN NOT PAY LEGAL SERVICE FOR APPEAL TO THIS COURT AT THAT MOMENT, SO TO MAKE SURE I IN LAWFULL I GET VOLUNTEERED IN UNION OF WORKERS TO HELP ME IN THIS APPEAL PROCESS.
As outlined above, the applicant also sent “submissions” to the Court on the day of the hearing (by email) which essentially expanded on the applicant’s explanation for the delay. Those submissions relevantly provided as follows:
Upon reviewing the details of my situation, it has become evident that there were various challenges that I faced during this period and that the reasons for the delay are due to a series of unfortunate circumstances. Firstly, I was using a different email address when I initially applied for the visa.
Unfortunately, I experienced phone damage and was unable to repair it due to financial difficulties. Consequently, I could not access my previous email account as I had forgotten the password and I did not receive any notifications from my previous account. This led to a missed hearing on December 14, 2017, as I was unaware of it due to my phone issue. Please note that this was not intentional, as I had no knowledge of the hearing until I received the court books. I apologize for any inconvenience caused by this misunderstanding. As a result on this, I was submitted a second application using a different email address.
Furthermore, I had enlisted the assistance of a lawyer who later turned out to be fraudulent. This discovery came as a shock to me and which I was unaware at the time. This unfortunate experience further contributed to the delay in my visa application. Additionally, English is not my first language, and the language barrier also posed significant challenges for me, as I am not fluent in English. This lack of proficiency in the language made it difficult for me to navigate the legal processes effectively I also encountered significant challenges during this time, particularly in terms of the cost of living because my employment situation has been unstable, particularly due to the rural area I am residing in, where finding a job is challenging and the job opportunities are limited, finding work has been a significant struggle and the lack of a visa has caused financial hardships and instability in my employment as well and the inability to afford legal representation, making the visa application process even more difficult.
I was not aware of the resources available, such as legal aid organizations, that could have provided guidance and support throughout this process. I truly believe that I am in need of support and assistance during this challenging time. Moreover, I have been struggling with depression due to these challenging circumstances. Mental health challenges can greatly impact an individual's ability to navigate complex legal matters effectively, and I have found it especially difficult to cope.
I kindly request an extension of time to adequately address my visa application and I sincerely apologize for any inconvenience caused by the delays, I am committed to actively engaging with the necessary procedures and taking any necessary steps to ensure a smooth process from this point onwards. I am hopeful that you will empathize with my situation and I am hopeful that you will grant me an extension of time to rectify my visa application.
Essentially, the applicant claims that:
(a)he did not have the financial resources available to obtain legal assistance or to file his application with this Court and was not aware that he could seek the assistance of organisations such as Legal Aid, ultimately obtaining assistance from the “Union of Workers” to make his application;
(b)he was unable to access his emails because his phone was damaged and this resulted in him “missing” a hearing on 14 December 2017;
(c)he had initially “enlisted the assistance of a lawyer who later turned out to be fraudulent”;
(d)he was unable to navigate the legal process as a result of his lack of English proficiency; and
(e)he had been “struggling with depression” and found it “especially difficult to cope” with and “navigate complex legal matters effectively”.
These issues will be addressed in turn below.
Insofar as the applicant claims that he did not file his application for judicial review in this Court because he did not have the financial means to do so (or to obtain legal assistance with his application), the Court sympathises and acknowledges that many applicants appear before this Court in similar circumstances, having faced similar difficulties. The Court notes, however, that claimed impecuniosity is not an acceptable explanation for failing to lodge a judicial review application within the requisite time period: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]–[26] per Barker J. There is also no evidence that the applicant contacted the Court’s registry team to discuss this issue or seek any assistance or fee reduction in this regard.
Further, the Court notes that there is no right to legal representation in migration proceedings: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099. Nor is a lack of legal representation (or an inability to engage legal counsel) a sufficient explanation alone for an extension of time: Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 at [27], [32] & [36]; Manna at [17].
To the extent that the applicant references “missing a hearing” on 14 December 2017 due to being unable to access his emails, the Court notes that there was no hearing listed (or held) in this matter. The Court assumes that the applicant is referencing not being able to access the notification of the Tribunal’s no jurisdiction decision (which was made on 14 December 2017) because he was unable to access his emails (CB 95-98).
The Court notes that the Tribunal notified the applicant of its no jurisdiction decision by transmitting the document (and relevant notification letter) to his last known email address on 15 December 2017 (CB 95-96). That email address was provided by the applicant in his second Tribunal application (CB 86). The Court further notes that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter where the notification was sent via email), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case at the end of the day it was transmitted), regardless of whether the document was actually received or the email was in fact accessed by the applicant: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 (“SZNZL”) at [36].
The Court also notes that there is no evidence before this Court to suggest that the applicant attempted to contact the Tribunal or take any action in relation to the second Tribunal application between December 2017 (when the Tribunal’s no jurisdiction decision was made) and September 2021 (when the applicant sought review of the Tribunal’s no jurisdiction decision in this Court). For example, the applicant did not attempt to phone the Tribunal to obtain an update in relation to his review application or to enquire as to whether a decision had been made.
To the extent that the applicant suggests that he had enlisted the assistance of a lawyer who later turned out to be fraudulent, the Court notes that there is, in effect, nothing in the evidence before the Court to suggest that the applicant was ever represented by a migration agent or a lawyer. Further, even if the applicant did receive assistance from a lawyer or a migration agent, the Court does not accept, on the evidence available, that there has been any fraud by that person of the sort contemplated in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
The applicant also claims that he was unable to navigate the legal process as a result of his lack of English proficiency. The Court accepts that this applicant (like many applicants who appear before this Court in matters of this sort) may have been unsure of how to lodge an application because of his lack of basic English skills. The Court also accepts that the applicant may have had difficulties navigating and accessing the Court’s online filing portal. However, the Court again notes that there is no evidence to suggest that the applicant contacted the Court or the Tribunal for any assistance in this regard.
The applicant also states that he was facing depression and struggling to cope with and navigate complex legal matters. The Court acknowledges that proceedings of this nature can be stressful and difficult for self-represented litigants – particularly those for whom English is not their first language.
Even accepting some of the concerns raised by the applicant, however, the Court does not consider that they adequately explain a delay of approximately three years and eight months (being the delay in this matter). The frustrations highlighted by the applicant (financial difficulties, language barriers and being unfamiliar with the Australian legal system) are difficulties which are shared by many who appear before this Court. Most, however, are able to file their application and documents within the time period prescribed.
The explanations provided by the applicant do not account for the extraordinary delay in this matter.
This weighs heavily against the granting of an extension of time.
Merits
Arguably, the most critical factor for consideration when determining whether the Court ought to grant an extension of time is whether the proposed application for judicial review has any “prospect of success” (viewed impressionistically).
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
To assist the applicant, the Court explained to him that the only issue before the Court was whether there is an arguable case, viewed impressionistically, that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant referenced a “typographical” error [1] of the Minister’s written submissions (filed in this Court on 3 November 2023). Specifically, the applicant noted that the submissions reference a decision made on 14 December 2014. The applicant stressed that he had not been in Australia at that time. Mr Anastasi (for the Minister) advised the Court that this date should have read “14 December 2017” and the incorrect date was simply a typographical error. Noting that the Tribunal’s no jurisdiction decision was made on 14 December 2017, the Court accepts this to be the case.
The applicant also expressed some concern about the conduct of the agent who assisted him with the preparation of the application to this Court (not the Tribunal).
Unfortunately, the applicant’s oral submissions in this matter do not raise any issue of an “arguable case” of jurisdictional error or any issue of the sort that this Court can address.
The Tribunal’s decision
In order to determine whether the substantive application for judicial review has any “merit”, it is useful to first set out the Tribunal’s decision.
The Tribunal’s decision (dated 14 December 2017) spans five paragraphs. In full, it provides as follows:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 21 March 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 24 October 2017. 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 28 September 2017. 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 SZASP v MIAC [2007] FCA 771.
4.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
5. The Tribunal does not have jurisdiction in this matter.
Whether the Tribunal was correct to determine that it did not have jurisdiction in this matter
Before considering the applicant’s proposed grounds of review (as set out in the application for judicial review filed by the applicant on 9 September 2021), it is necessary for the Court to first consider whether the Tribunal was correct in determining that it did not have jurisdiction to conduct a review (as requested by the second Tribunal application) in this matter.
This Court recently considered a decision made by the Tribunal in similar circumstances in BBD23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 883 (“BBD23”). The analysis provided in BBD23 applies equally here and is repeated below.
Section 411 of the Act provides that a decision to refuse to grant an applicant a protection visa is a “Part 7-reviewable decision” and is thus reviewable by the Tribunal: s 411(1)(c) of the Act.
Section 412 of the Act outlines what is required in order for a valid application for review to be made to the Tribunal.
Where a valid application for review is made, s 414 of the Act requires that the Tribunal review that decision. Section 414 of the Act relevantly provides as follows:
414 Tribunal to review Part 7‑reviewable decisions
(1)Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7‑reviewable decision, the Tribunal must review the decision.
(2)The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
Here, a delegate refused to grant the applicant the visa on 21 March 2017 (CB 48-60).
The applicant then made the first Tribunal application on 6 April 2017 (CB 66).
The Tribunal, in relation to the first Tribunal application, affirmed the delegate’s decision refusing to grant the applicant the visa (by way of the first Tribunal decision made on 28 September 2017) (CB 65-81).
The applicant was notified of that first Tribunal decision by letter dated 28 September 2017 (sent to the applicant via email that same day, being on 28 September 2017) (CB 63-64).
In the circumstances of this matter, a valid application was made (by the applicant to the Tribunal) for review of the delegate’s decision by way of the first review application (CB 66).
That first review application was finalised when the Tribunal delivered the first Tribunal decision on 28 September 2017 (CB 65-81).
The applicant then filed the second Tribunal application with the Tribunal on 24 October 2017 (CB 85-86). As explained above, it is not clear to the Court (based on the information included in the second Tribunal application) whether the applicant was seeking further review of the delegate’s decision (dated 21 March 2017) or asking the Tribunal to re-open or reconsider the matter in relation to the first Tribunal decision (dated 28 September 2017). This is so because the second Tribunal application references both the Department file number and details but also noted that the “date of decision” to be reviewed was 28 September 2017. Further, the second review application records that “nil documents” were uploaded with the application.
In the circumstances, the Court will consider whether the Tribunal had jurisdiction in relation to either decision.
The Tribunal ultimately found (on 14 December 2017) that it did not have jurisdiction to review the delegate’s decision a second time, citing SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164 (“SZBWJ FMCA”). The relevant passage in SZBWJ FMCA as referenced by the Tribunal (at [3] in its reasons) reads as follows:
41.Where the decision of a delegate of the Minister has already been the subject of a valid review by the Refugee Review Tribunal it is no longer an RRT reviewable decision under s 411. Where the Tribunal concludes that it has already discharged its function under the Act to review the Delegate’s decision and a second application for review is not a valid application because the Tribunal no longer has jurisdiction in relation to that decision, there is no jurisdictional error.
The Court also notes comments made by Smith FM in SZEYK v Minister for Immigration & Anor [2008] FMCA 1354 (“SZEYK”) at [5] where it is stressed that the Tribunal does not have jurisdiction to review a delegate’s decision twice:
5.In its reasons, the Tribunal referred to well known authority which establishes that it does not have jurisdiction to review a delegate’s decision twice. That line of cases has recently been followed by Cowdroy J in SZCKX v Minister for Immigration & Citizenship [2008] FCA 526 and Moore J in SZBWJ v Minister for Immigration & Citizenship [2008] FCA 1175.
In SZEYK, Smith FM is referencing the reasons of Moore J in SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175 (“SZBWJ FCA”) (being the appeal of the decision in SZBWJ FMCA referenced above). In that matter, much like in the present case, the applicants sought a further review of a delegate’s decision by the Tribunal. Relevantly, Justice Moore’s findings provide:
16.In my view, a proper construction of the Act tells against a conclusion that the Tribunal is empowered to again review the delegate’s decision in circumstances where the Tribunal’s original decision was not attended with jurisdictional error. Treating the Tribunal as authorised to undertake a second review of the delegate’s decision would be contrary to the statutory aim of providing a mechanism of review that is “fair, just, economical, informal and quick”: see s 420(1) of the Act…
…
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) 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.
…
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) 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.”
As outlined above, the Tribunal in this matter discharged its function when it made its first Tribunal decision (following the first Tribunal application made by the applicant) (CB 65-81). Having done so, the Tribunal did not have jurisdiction to consider any further review application made in relation to the same delegate’s decision. The second review application (insofar as it was requesting a further review of the delegate’s decision dated 21 March 2017) was not a valid application because the Tribunal no longer had jurisdiction in relation to the delegate’s decision: SZBWJ FMCA at [41].
In the event that the applicant was asking the Tribunal to re-open or reconsider the first Tribunal decision, the Court notes the comments made by Moore J in SZBWJ FCA (citing Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301) as follows:
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) 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.
That reasoning applies equally in this matter. That is, even if the applicant asking the Tribunal to reopen or reconsider the first Tribunal decision (by way of the second Tribunal application), the Tribunal did not have the power to do so.
For the reasons outlined above, the Court is satisfied that the Tribunal was correct to find that it did not have jurisdiction in this matter and no arguable case of error arises in that regard.
Proposed application for judicial review
The Court will now turn to the applicant’s proposed grounds of review. The application for judicial review filed by the applicant on 9 September 2021 contains five grounds of review as follows (without alteration):
1.THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE.
2. THE TRIBUNAL DEPRIVED ME OF PROCEDUR FAIRNESS.
3.THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE.
4.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABAOUT THE TYPES OF HARM RELEVENT IN MY CASE.
5.ACCORDING IN SECTION 44 OF THE ADMINISTRATIVE APPEAL TRIBUNAL ACT 1975 THERE IS A DESCRIPTION AND AUTHORIZING ME TO MAKE SUCH ACTION APPEAL TO FEDERAL CIRCUIT COURT.
Grounds 1, 3 and 4
As set out above, grounds 1, 3 and 4 provide as follows:
1.THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE.
…
3.THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE.
4.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABAOUT THE TYPES OF HARM RELEVENT IN MY CASE.
By these grounds, the applicant essentially takes issue with how the Tribunal undertook (or, in this case, did not undertake) its review.
As discussed above, the Court is satisfied that the Tribunal was correct to determine that it did not have jurisdiction in this matter.
On that basis, the Tribunal was not required (and had no jurisdiction) to consider the applicant’s protection claims (or any integer of the applicant’s claims) or to ask the applicant any questions about the types of harm relevant to those claims.
No arguable case of error arises in this regard.
Insofar as the applicant claims that the Tribunal relied on incorrect information or decided the applicant’s matter based on information relating to another matter or another applicant, this fails on a factual level. The applicant did not elaborate on this claim in oral submissions before this Court and has not identified which incorrect information has been relied upon (or any information relating to a third party).
The Court has reviewed the Tribunal’s no jurisdiction decision and is satisfied that the information contained in that decision related to the applicant and was correct. Relevantly, the Tribunal:
(a)correctly identified that a delegate of the Minister had refused to grant the applicant the visa on 21 March 2017 (at [1]);
(b)noted that the second review application was made to the Tribunal on 24 October 2017 (at [2]);
(c)explained that an application in relation to the delegate’s decision was previously made to the Tribunal and that the Tribunal had made a decision on that application on 28 September 2017 (at [3]);
(d)acknowledged relevant case law providing 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 … the decision is no longer a reviewable decision” (at [3]); and
(e)correctly determined that it did not have jurisdiction in the matter (at [4]-[5]).
No arguable case of jurisdictional error arises in relation to grounds 1, 3 or 4.
Ground 2
Ground 2 states:
2. THE TRIBUNAL DEPRIVED ME OF PROCEDUR FAIRNESS.
The applicant has not explained why he thinks that he was not afforded procedural fairness. Noting that the applicant is unrepresented and may not have adequate knowledge and an ability to prepare for, or understand, what is required of them, the Court has remained astute to the possibility of legal error in the Tribunal’s decision and will read the applicant’s ground as broadly as possible: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391.
Insofar as the applicant is suggesting that the Tribunal should have considered his protection claims or reviewed his matter substantively, the Court disagrees.
As has been considered above, the Court is satisfied that the Tribunal did not have jurisdiction in this matter. Once the Tribunal determined that it did not have jurisdiction, it was unable to go on to assess the merits of the applicant’s matter.
The Court will also consider whether the applicant was afforded common law natural justice or procedural fairness.
The issue of whether the Tribunal is required to adhere to common law natural justice guarantees within the context of a “no jurisdiction” decision has recently been canvassed by this Court in CLY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 759 (citing WZAVO as litigation guardian for WZAVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 108 (“WZAVO”) at [82]-[87]).
That analysis applies equally here and relevantly provides as follows.
The Tribunal’s procedural fairness obligations in conducting a review of this sort are set out in Division 4 of Part 7 of the Act. However, those obligations are not enlivened where there is no “valid” application before the Tribunal.
As outlined by the Federal Court in SZNZL:
46.The Minister contends that the Tribunal has obligations of procedural fairness in the course of conducting a review, which are exhaustively codified by the Act in Div 4 of Pt 7; but no review is commenced unless an application is made which engages the Tribunal’s jurisdiction. While the Tribunal needs to form a view about whether it has jurisdiction in each case, it cannot conclusively determine its own jurisdiction and its opinion on the issue has no legal force in itself. Thus no issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it has jurisdiction. The issue before the Court is simply whether the Tribunal’s conclusion was right, not how it arrived at that conclusion.
Here, as in WZAVO, there was no application before the Tribunal that engaged the Tribunal’s jurisdiction. Once it was clear that the Tribunal had already conducted a review of the delegate’s decision in this matter, there were no further determinations that needed to be made. Hence, as per SZNZL, no issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it had jurisdiction. The only issue is whether the Tribunal’s conclusion was right – not how it arrived at that conclusion. Here, for the reasons detailed above, the Court has determined that the Tribunal’s decision in relation to whether it had jurisdiction was correct.
In relation to the common law guarantees of natural justice, the Court again relies on its decision in WZAVO (at [83]) and notes that, to the extent that it is argued that the applicant was entitled to the common law guarantees of natural justice, the common law rules of procedural fairness only require that the Tribunal draw to the applicant’s attention the critical issue upon which a decision is likely to turn and provide the applicant with an opportunity to respond accordingly: Kioa v West (1985) 159 CLR 550 at 584 & 587 and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35]-[36] per Bennett J.
Unfortunately, the Tribunal failed to do so in this matter. That is, the Tribunal did not draw to the applicant’s attention the fact that an application had already been made to the Tribunal in relation to the delegate’s decision (by way of the first Tribunal application) or that the Tribunal had already determined that application (by way of the Tribunal’s first decision). The applicant was also not provided an opportunity to comment on or respond to that information.
The Tribunal has erred by doing so.
The Court must therefore consider whether such an error is a “jurisdictional error”.
Where an error is material or could have realistically deprived an applicant of the opportunity for a successful outcome, that error is jurisdictional: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [27]‑[30]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [4] & [45]‑[50] and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [38]‑[39].
In the circumstances of this matter, the Court does not consider that the error could have deprived the applicant of the opportunity for a successful outcome for the reasons that follow.
As outlined above, the Tribunal has already reviewed the delegate’s decision in this matter and the Tribunal does not have jurisdiction to review a delegate’s decision twice: SZEYK at [5]. Further, the Tribunal did not possess the power to reopen or reconsider a decision it had previously made (being the Tribunal’s first decision): SZBWJ FCA at [19].
On that basis, even if the Tribunal had invited the applicant to provide comment, nothing the applicant could have told the Tribunal would have changed the Tribunal’s position. Further, even if the matter were remitted to the Tribunal, the Tribunal could still only come to the same conclusion.
Whilst the Tribunal erred in failing to draw to the applicant’s attention the critical issue upon which the Tribunal’s no jurisdiction decision was likely to turn and failing to provide the applicant with an opportunity to comment on or respond to that issue, the Court does not consider that error, in the context of this matter, to be jurisdictional.
Ground 5
Ground 5 provides:
5.ACCORDING IN SECTION 44 OF THE ADMINISTRATIVE APPEAL TRIBUNAL ACT 1975 THERE IS A DESCRIPTION AND AUTHORIZING ME TO MAKE SUCH ACTION APPEAL TO FEDERAL CIRCUIT COURT.
The applicant here does not raise any ground of jurisdictional error. He simply asserts that he is authorised to seek review of the Tribunal’s decision. The applicant is correct in that regard and can seek review of the Tribunal’s decision pursuant to s 476 of the Act. As set out above, however, the applicant requires an extension of time to do so as his application to this Court was filed outside of the requisite 35 day time period from the date of the Tribunal’s no jurisdiction decision (as per the requirements of s 477(1) of the Act).
The Court has considered (by this judgment) whether such an extension of time ought to be granted.
Conclusion regarding merits of the substantive application
The applicant’s “grounds of review” and oral and written submissions in this matter, assessed at a reasonably impressionistic level, do not identify any arguable case of jurisdictional error on the part of the Tribunal. The Court has also been unable to identify any arguable grounds of error of the sort that this Court can address.
This weighs heavily against granting an extension of time.
CONCLUSION
The inordinate delay in filing and the lack of both a satisfactory explanation for that delay and any arguable case of jurisdictional error on the part of the Tribunal (judged at an impressionistic level only) are such it is not in the interests of the administration of justice for an extension of time to be granted in this matter.
The application for an extension of time is, accordingly, dismissed.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 14 December 2023
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