EJE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 703
•16 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EJE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 703
File number(s): SYG 2296 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 16 April 2021 Catchwords: PRACTICE AND PROCEDURE – MIGRATION – application for summary dismissal of proceeding in which applicant claims remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to decision by the Administrative Appeals Tribunal (Tribunal) that it did not have jurisdiction to consider an application for review of a delegate’s decision not to grant applicant a protection visa because the Tribunal had previously considered and determined an application for review of the same delegate’s decision – whether applicant has reasonable prospects of succeeding in establishing the Tribunal did have jurisdiction because the letter by which the delegate notified the applicant of the decision not to grant the applicant a protection visa did not comply with s 66(2)(d)(ii) of the Act – no reasonable prospects of success – no reasonable prospects of success in relation to all other claims – proceeding dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth) r 13.10, Sch 1, Pt 3
Migration Act 1958 (Cth) ss 66, 425, 426A(1A)(b), 426A(1E), 426A(1F), 426B(5), 430, 476,
Migration Regulations 1994 (Cth) reg 4.31
Cases cited: BMY18 v Minister for Home Affairs [2019] FCAFC 189
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79
Number of paragraphs: 26 Date of hearing: 8 April 2021 Place: Sydney The Applicant: Appeared in person, assisted by an interpreter Solicitor for the First Respondent: Mr E Taylor of Mills Oakley Lawyers
Table of Corrections 19 April 2021 The word “ceased” appearing in the second line of paragraph 15 has been replaced with the words “did not cease”. ORDERS
SYG 2296 of 2020 BETWEEN: EJE20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
16 APRIL 2021
THE COURT ORDERS THAT:
1.Pursuant to r 13.10 of the Federal Circuit Court Rules 2001 (Cth) the proceeding is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $5,000.
REASONS FOR JUDGMENT
INTRODUCTION
Before the Court is an application in a case filed by the first respondent (Minister) under r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) for an order that the proceeding be dismissed.
In the proceeding the applicant claims remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) that it did not have jurisdiction to entertain an application for review in relation to a decision a delegate of the Minister made on 8 June 2016 not to grant the applicant a Protection (subclass 866) visa (Protection visa). The Tribunal decided it did not have jurisdiction to entertain the application for review because the applicant had previously applied to the Tribunal for review of the delegate’s decision in which the applicant was not successful.
Rule 13.10 of the FCC Rules relevantly provides that the Court may order that a proceeding be dismissed generally if the Court is satisfied that the party prosecuting the proceeding has no reasonable prospect of successfully prosecuting the proceeding, or if the proceeding is an abuse of process. The Minister submits the applicant has no reasonable prospect of successfully prosecuting his claim for remedies under s 476 of the Act.
BACKGROUND
The applicant, who is a citizen of Malaysia, applied for a Protection visa on 13 April 2016. A delegate of the Minister refused that application on 8 June 2016 (Delegate’s Decision). The delegate notified the applicant by attaching the decision record to a letter dated 8 June 2016. The delegate sent the letter and decision record in purported compliance with s 66 of the Act, which relevantly provides:
(1)When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c) unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
(e) in the case of a fast track reviewable decision—state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and
. . . .
(4) Failure to give notification of a decision does not affect the validity of the decision.
. . . .
Relevant to the application before me are the following passages from the delegate’s letter dated 8 June 2016:[1]
[1] CB55-57
Review Rights
. . . . An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
. . . .
Financial or case worker assistance
. . . .
. . . . As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
The applicant applied to the Tribunal for review of the Delegate’s Decision on 16 June 2016.
By letter dated 19 January 2017 the Tribunal sent to the applicant’s nominated email address a letter inviting the applicant to attend a hearing before the Tribunal on 15 February 2017 to give evidence and present arguments. It is apparent that the hearing the Tribunal invited the applicant to attend was a hearing s 425 of the Act required the Tribunal to hold.
The applicant did not appear before the Tribunal at the appointed time and date. On 15 February 2017 the Tribunal dismissed the application for review pursuant to s 426A(1A)(b) of the Act and, as it was required to do by s 426B(5) of the Act, the Tribunal notified the applicant of its decision by email sent on 16 February 2017 to the applicant’s nominated email address. The Tribunal attached to the decision it sent to the applicant a document titled “Information about dismissal of applications –MR Division”. The document informed the applicant he could apply for reinstatement of his application for review by making such application within 14 days after receiving notice of the dismissal.
The applicant did not make any application to reinstate his application; and, as it was bound by s 426A(1E) of the Act to do, on 8 March 2017 the Tribunal confirmed its decision to dismiss the application by making a written notice under s 430 of the Act. Because the Tribunal confirmed its decision s 426A(1F) of the Act applied with the consequence that the Delegate’s Decision is taken to have been affirmed.
On 26 April 2017 the applicant lodged another application with the Tribunal for a review of the Delegate’s Decision, but on 11 May 2017 the Tribunal said it did not have jurisdiction to review the Delegate’s Decision. The applicant again applied for a review of the Delegate’s Decision on 4 July 2020. On 21 September 2020 the Tribunal again decided it did not have jurisdiction. The Tribunal said:[2]
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 9 March 2020. 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 . . . . The Tribunal has no jurisdiction to review a delegate’s decision twice . . . .
[2] CB108, [3]
On 6 October 2020 the applicant filed an application in this Court which contained the following grounds of application:
There exist jurisdictional errors.
1.There exists procedural unfairness.
In refusal notification, the Department did not clearly state which day is the starting date for review period of 28 days.
2.Tribunal did not consider the error of the Department.
3.Tribunal did not refer to right authorities to handle my case.
DETERMINATION
There is no question that once “the Tribunal has delivered its decision free from jurisdictional error, it is functus officio”, and that “[o]nce the statutory function is performed, there is no further function authorised under the Act for the Tribunal to carry out and it has no power to reopen the delegate’s decision”.[3] The question that arises, therefore, is whether none of the grounds stated in the application raise an arguable case that, on making the decision under s 426A(1E) of the Act on 8 March 2017 confirming the decision it made on 15 February 2017 under s 426A(1A)(b) of the Act to dismiss the application for review, the Tribunal’s statutory functions in relation to the application for review of the Delegate’s Decision the applicant lodged with the Tribunal on 16 June 2016 had not ceased.
[3] SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940, at [21] (Bennett J)
Notification of Delegate’s Decision not stating starting date of prescribed period
The first ground to consider is that the “Department did not clearly state which day is the starting date for review period of 28 days”. That is a reference to the passages from the delegate’s letter dated 8 June 2016 reproduced above. Those passages may be taken to have constituted the delegate’s attempt to give the statement s 66(2)(d)(ii) of the Act required the Minister to give when notifying an applicant of the Minister’s decision to refuse an application for a visa where the applicant has a right to have the decision reviewed under Part 5 or 7, that statement being “the time in which the application for review may be made” (Purported Statement).
There are three aspects of the Purported Statement that give rise to an arguable case that it did not comply with s 66(2)(d)(ii) of the Act, given the reasoning of the judgments of the Full Federal Court in BMY18 v Minister for Home Affairs and in Singh v Minister for Immigration and Border Protection.[4] First, the information relevant to determining the time in which an application for review could be made is contained in two different passages each in different sections of the letter under different headings. Second, the heading under which the second passage appears does not suggest any relevance to any right of review or to the time by which an application for review must be made. Third, the first passage refers to a period commencing “on the day on which you are taken to have been notified” whereas the second passage refers to when the addressee of the letter is “taken to have received it”.
[4] BMY18 v Minister for Home Affairs [2019] FCAFC 189; Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
Let it be assumed the Purported Statement did not comply with s 66(2)(d)(ii) of the Act. Would that mean there is an arguable case the Tribunal’s statutory functions did not cease on 8 March 2017 when under s 426A(1E) of the Act it confirmed the decision it made on 15 February 2017 under s 426A(1A)(b) of the Act to dismiss the application for review, and that the Tribunal, therefore, was incorrect to conclude it did not have jurisdiction to entertain the application for review the applicant lodged on 4 July 2020? That question must be answered “no”.
In BMY18 the Full Federal Court did not hold that the Minister’s failure to comply with the requirements of s 66(2)(d)(ii) of the Act prevented the Tribunal from having jurisdiction to consider an application for review that had in fact been made. On the contrary the Full Federal Court was of the view the Tribunal did have jurisdiction to consider the application. That is reflected in the orders the Full Federal Court made. The Full Federal Court ordered that the Tribunal’s decision that it did not have jurisdiction “be quashed”, and that the Tribunal “determine the Applicant’s review application on the basis that it has jurisdiction to do so”.
These orders appear to be based on two premises. The first is that the Minister’s failure to comply with s 66(2)(d)(ii) of the Act had the consequence of invalidating the notice purportedly given under s 66(1) which, in turn, prevented the period prescribed by reg 4.31 of the Migration Regulations 1994 (Cth) (Regulations) from commencing. The second premise is that a valid application for review can be made to the Tribunal after the Minister makes his decision but before the applicant is notified of the decision in the manner required by the Act and Regulations. In other words, an applicant can make a valid application to the Tribunal for review after the Minister makes a decision not to grant a visa but before the prescribed period commences. That is what the Full Federal Court held in SZOFE v Minister for Immigration and Citizenship.[5]
[5] SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79
There can be no doubt that the applicant in the case before me lodged his application for review of the Delegate’s Decision on 16 June 2016; the applicant lodged his application either within the prescribed period (assuming the notification of the Delegate’s Decision was valid) or before the commencement of the prescribed period (assuming the notification of the Delegate’s Decision was not valid); the Tribunal correctly accepted it had jurisdiction to review the applicant’s application for review; and it exercised that jurisdiction in the manner permitted and required by the Act. It is also beyond argument that the Tribunal’s functions under the Act in relation to its review of the Delegate’s Decision ceased on 8 March 2017 when the Tribunal, in exercise of the power conferred on it by s 426A(1E) of the Act, confirmed the decision it made on 15 February 2017 under s 426A(1A)(b) to dismiss the application. In those circumstances, it cannot reasonably be argued that any failure by the delegate to comply with s 66(2)(d)(ii) of the Act prevented the Tribunal from exercising the jurisdiction it did exercise leading up to the decision it made on 8 March 2017 affirming the decision it made on 15 February 2017 to dismiss the applicant’s application for review. That means there is no arguable case the Tribunal was incorrect in deciding on 21 September 2020 that it did not have jurisdiction to consider the application for review the applicant lodged on 4 July 2020.
The applicant, therefore, has no reasonable prospects of succeeding on this part of his claims.
Other grounds
The claims that there “exist jurisdictional errors” and there “exists procedural unfairness” are not particularised, and, for that reason, disclose no reasonably arguable case the Tribunal was incorrect in deciding it did not have jurisdiction. The applicant, therefore, does not have reasonable prospects of succeeding on these claims.
It is true the Tribunal did not consider the “error of the Department”, which I understand is intended to be a reference to the Department’s letter not having complied with s 66(2)(d)(ii) of the Act. But it is not arguable the Tribunal was required to consider whether the delegate had complied with s 66(2)(d)(ii) of the Act. There is no doubt the delegate had made a decision not to grant the applicant a Protection visa; the Tribunal therefore had jurisdiction to review the Delegate’s Decision in response to the application for review the applicant lodged on 16 June 2016, whether or not the delegate had complied with s 66(2)(d)(ii) of the Act. Given it is not arguable the Tribunal was required to consider whether the delegate had complied with s 66(2)(d)(ii) of the Act, it is not arguable the Tribunal was required to “refer to right authorities to handle my case”. The applicant, therefore, has no reasonable prospects of succeeding in his claims to the extent he claims the “Tribunal did not consider the error of the Department”, and the “Tribunal did not refer to right authorities to handle my case”.
Submissions at the hearing
At the hearing before me the applicant, who is not legally represented, referred to the Department’s not having notified him of its decision within 28 days. I take that to be a claim that the delegate did not comply with s 66(2)(d)(ii) of the Act. For reasons I have already given, it is not reasonably arguable that any failure by the delegate to comply with s 66(2)(d)(ii) of the Act has or may have the consequence that the Tribunal was incorrect to find it did not have jurisdiction to review the Delegate’s Decision in response to the application for review the applicant lodged on 4 July 2020.
The applicant also requested that I show compassion and assist him. The applicant referred to various hardships he will suffer if he were to return to Malaysia. As I explained to the applicant, this Court does not have the power to grant the applicant a Protection visa; the Court’s jurisdiction in relation to the applicant’s application in this Court is limited to determining whether the Tribunal was incorrect in concluding it did not have jurisdiction to review the Delegate’s Decision in response to the application for review the applicant lodged on 4 July 2020.
DISPOSITION
I am satisfied the applicant does not have reasonable prospects of succeeding on any of his claims for relief. I propose, therefore, to order that the proceeding be dismissed.
The Minister applies for an order that the applicant pay costs. The applicant submitted that he would not be able to pay costs that may be ordered against him. As I informed the applicant, that is not usually a sufficient reason for an order for costs not being made against an unsuccessful party. I am satisfied that the ordinary rule should apply in this case, with the consequence that I will order the applicant pay the Minister’s costs.
The Minister submits his costs should be set in the amount of $6,100. Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth), as in force at the time the applicant commenced this proceeding, allows $3,737 where a proceeding is concluded after the first court date and at or before any interlocutory hearing. That appears, therefore, to be the amount that is relevant to the application before me. The Minister, however, has performed work that is indistinguishable from the work the Minister would have done had the matter proceeded to a final hearing. In those circumstances, $5,000 would be a fair indemnity for the costs the Minister has incurred in connection with these proceedings. I propose, therefore, to order the Minister’s costs be set in the amount of $5,000.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 19 April 2021
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