DSL16 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 940
•24 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DSL16 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 940
File number(s): SYG 1336 of 2023 Judgment of: JUDGE LAING Date of judgment: 24 September 2024 Catchwords: MIGRATION – whether time ought to be extended in respect of an application for review of a summary dismissal decision made by a Registrar – relevant considerations – where the substantive application had no reasonable prospect of success – application dismissed Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13 & 21.02
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Migration Act 1958 (Cth)
Cases cited: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368
BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 902
BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307
BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023
Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929; (2001) 64 ALD 9
Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 76 FCR 301
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 631
SZASP v Minister for Immigration and Citizenship [2007] FCA 771
SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submission/s: 4 September 2024 Date of hearing: Determined on the papers Place: Sydney Applicant: Litigant in person Solicitor for the First Respondent: MinterEllison Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1336 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DSL16
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
24 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs” dispensing with the need for filing any further document in this regard.
2.The application filed on 27 August 2024 be dismissed, with time not being extended pursuant to r 21.02(2) 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 LAING:
The applicant seeks review of a Registrar’s decision made on 31 July 2024. By that decision, an application for judicial review (Substantive Application) was summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), with costs.
The Substantive Application sought judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal determined that it had no jurisdiction to review a decision of a delegate (Delegate) of the first respondent (Minister), on the basis that an application for review of the same Delegate’s decision had previously been made and determined. This was in circumstances where the Tribunal had previously affirmed the Delegate’s decision refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
BACKGROUND
The applicant applied for the protection visa on 11 November 2015. On 7 March 2016, the Delegate refused the application.
The applicant applied to the Tribunal for review of the Delegate’s decision on 17 March 2016.
On 25 November 2016, the Tribunal affirmed the Delegate’s decision.
The applicant applied for judicial review of the Tribunal’s decision. That application was dismissed on 12 November 2019 by the Federal Circuit Court of Australia (as it was). A subsequent appeal to the Federal Court of Australia, and application for special leave to the High Court of Australia, were unsuccessful.
On 30 May 2023, the applicant applied to the Tribunal again. Although a different date for the Delegate’s decision was given on the application form, it was apparent from the balance of the information provided that the applicant again sought review of the Delegate’s decision.
By email dated 13 July 2023, the applicant was invited to comment upon the validity of the application.
On 8 August 2023, the Tribunal determined that it did not have jurisdiction in the matter.
THE TRIBUNAL’S DECISION
The Tribunal gave the following reasons for its decision:
…
3.On 12 November 2015 the applicant lodged a valid application for a protection visa. He had previously lodged a protection visa application that was deemed invalid. On 7 March 2016 the delegate refused to grant the applicant the protection visa.
4.On 17 March 2016 the applicant applied to the Tribunal for review of the decision. On 21 November 2016 the applicant appeared at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. On 25 November 2016 the Tribunal affirmed the decision to refuse to grant the applicant the protection visa: AAT case 1603668. The applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision. On 12 November 2019 the Federal Circuit Court dismissed the judicial review. The applicant appealed to the Federal Court against the decision of the Federal Circuit Court. On 11 August 2020 the Federal Court dismissed the appeal. The applicant applied to the High Court for special leave to appeal against the decision of the Federal Court. On 2 September 2021 the High Court refused to grant leave.
5.On 30 May 2023 the applicant again applied to the Tribunal for review of the decision. It is this review that is the subject of this decision record…
6.For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
7.An application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application. 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.
8.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…
PROCEEDINGS BEFORE THIS COURT
The applicant sought review of the Tribunal’s decision by this Court through an application filed on 21 August 2023.
The response filed by the Minister indicated that summary dismissal was sought pursuant to r 13.13 of the GFL Rules on the basis that the application had no reasonable prospects of success.
On 31 July 2024, orders were made by a Registrar summarily dismissing the Substantive Application, with costs.
The applicant applied for review of the Registrar’s decision on 27 August 2024. A listing notice was subsequently sent to the parties. The notice observed that the matter could alternatively be determined on the papers, without a hearing, if both parties consented to this course. In response, both the applicant and the Minister contacted my Associate by email consenting to this course being adopted. The applicant also informed the Court by email that he did not seek an opportunity to provide written submissions to the Court and would prefer to have the matter considered on the material already possessed by the Court.
LATE FILING OF THE APPLICATION FOR REVIEW
Rule 21.02(1) of the GFL Rules required that the application seeking review of the Registrar’s decision be made within 7 days. This did not occur. The review application was made on 27 August 2024, 27 days after the Registrar’s decision on 31 July 2024.
The Minister opposed the extension of time.
In an affidavit, the applicant explained that the delay occurred because he “couldn’t afford [a] lawyer to give [him] legal advice” and he “was having troubles [filling in] the form requested so it takes so much time”.
The delay in this matter, whilst not inordinate, is not insignificant. Although I have some sympathy for the difficulties unrepresented litigants may face in navigating the requirements of the GFL Rules, I accept the Minister’s submission that a lack of legal advice is not, of itself, a sufficient excuse for not making an application within time: see Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [35] (Wigney J). I am not persuaded that difficulties in filling in the form sufficiently account for the delay.
No specific prejudice has been identified by the Minister. However, the Minister observed that this did not, without more, justify the grant of the extension: BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 at [18] per Beach J. The Minister also noted the public interest in the timely and effective disposal of litigation: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929; (2001) 64 ALD 9 at [62] per Gyles J.
Further, for the reasons that follow, I accept the Minister’s submission that the underlying application for review of the Registrar’s decision lacks merit. This is a consideration that may weigh heavily against granting the extension of time: see Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 631 at [74] (Judge Ladhams); see also BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 902 at [4], [27] and [48] (Judge Champion) (from which an application for an extension of time and leave to appeal was dismissed by Burley J in BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307).
For the reasons that follow, I find that it does so in the present case. Therefore, even if the applicant had provided an acceptable explanation for the delay, I would still have been inclined to dismiss the application.
SUMMARY DISMISSAL
If the extension of time were granted, the question of whether the Substantive Application ought to be summarily dismissed would be required to be considered on a de novo basis.
Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides as follows:
143 Summary judgment
…
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section…
Rule 13.13 of the GFL Rules provides:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
In considering an application for summary dismissal, the Court is not required to determine whether or not the Tribunal’s decision is affected by jurisdictional error. Rather, the Court is concerned with whether the case raises a real or genuine dispute that might reasonably be resolved in an applicant’s favour: see AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33] (Judge Given) and the cases cited therein.
MERITS OF THE UNDERLYING APPLICATION
The grounds relied upon by the applicant in the Substantive Application were stated as follows:
1.The Administrative Appeals Tribunal made a jurisdictional error as it should accept my application.
2.The Tribunal should consider my situation in new circumstances as things change all the time.
3.I should be given another chance to assess the risks of me being send back to my own country as I have been living here for over ten years and I am too old to survive in my country.
(As per the original)
Ground 1 asserted that the Tribunal “made a jurisdictional error”. However, no basis for this was stated, other than a general assertion that the Tribunal should have accepted the applicant’s application. Grounds 2 and 3 suggested that the Tribunal should consider the applicant’s situation according to updated circumstances and that the applicant should be given another chance due to his age and time in Australia.
However, the powers of the Tribunal were limited under the Migration Act 1958 (Cth) (Act), as are the powers of this Court. If the Tribunal was correct in finding that it lacked jurisdiction, then this Court has no power to remit the matter to the Tribunal on compassionate grounds.
I accept the Minister’s submissions as to why the Tribunal correctly found that it lacked jurisdiction in the matter.
The Tribunal correctly understood the effect of SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164 (SZBWJ) per Scarlett FM, Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 76 FCR 301 (Jayasinghe) per Goldberg J and SZASP v Minister for Immigration and Citizenship [2007] FCA 771 (SZASP) per Moore J. Those cases are authority for the proposition that the Tribunal does not have jurisdiction to review a delegate’s decision twice. In circumstances where the Tribunal has already carried out its statutory duty to review a delegate’s decision, the Tribunal lacks jurisdiction to conduct a further review.
In SZASP, it was stated (at [4]):
4.It is necessary to first say something about the applicant's attempt to seek a second review of the delegate's decision in the Tribunal. 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: see Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 at [30], Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7], and Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor [1997] FCA 551; (1997) 76 FCR 301. The Tribunal was also correct in finding that changed circumstances did not provide any legal basis for undertaking a second review. The avenue provided by the Act to take into account changed circumstances, at least potentially, is the Minister's power to permit lodgement of a further protection visa application under s 48B of the Act.
There is no reason to doubt that the first decision by the Tribunal was valid, having regard to the various unsuccessful applications made by the applicant seeking to challenge that decision through the courts. The Tribunal was therefore correct to find that it lacked jurisdiction to review the Delegate’s decision a second time. No arguable basis has been identified for finding otherwise.
CONCLUSION
Having regard to the above, I accept the Minister’s submission that it is not in the interests of justice to extend time for the bringing of the review application under r 21.02(2)(a) of the GFL Rules. This is in circumstances where the proposed review application and the proposed Substantive Application lack any reasonable prospect of success. In these circumstances, even if time had been extended, the application for review of the Registrar’s decision would have been dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 24 September 2024
0
13
3