EMD20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 8
•9 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EMD20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 8
File number(s): SYG 2358 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 9 January 2025 Catchwords: MIGRATION – judicial review – application for review to the Tribunal withdrawn by the applicant – issue as to the Tribunal’s power to accept a withdrawal of an application for review where no express legislative provision to permit the applicant to withdraw an application or for the Tribunal to accept a withdrawal – common law principle that unless constrained by statutory considerations effectively abrogating or fettering the right to unilaterally withdraw, an applicant has an inherent right to withdraw – common law applies to permit applicant to validly withdraw – no jurisdictional errors disclosed – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 24Z, 42A
Migration Act 1958 (Cth) s 426A
Cases cited: Behay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 357 FLR 123
BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095
Christie v Neaves (2001) 113 FCR 279.
Sayed v National Disability Insurance Agency(No 5) [2024] FCA 923
SZASD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 472
SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 18 September 2024 and 6 December 2024 Place: Sydney Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr R Harvey Solicitor for the First Respondent: HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 2358 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EMD20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
9 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application is 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 Kaur-Bains
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 22 September 2020, in which the Tribunal concluded it did not have jurisdiction to conduct a review of the delegate’s decision refusing to grant a Protection (Class XA) (subclass 866) visa (visa). The Tribunal determined it did not have jurisdiction because the applicant had previously withdrawn her application and then subsequently submitted another application for review of the same delegate’s decision.
For the reasons outlined below, no jurisdictional error is disclosed in this matter.
First Application to the Tribunal to Review the Delegate’s Decision
On 2 April 2018, the applicant lodged an application to the Tribunal seeking a review of the delegate’s decision to refuse to grant her the visa (Court Book (CB) 84).
On 15 May 2020, the applicant withdrew her application for review by submitting an online withdrawal form with the Tribunal (CB 100). Within the ‘Authority’ section of the withdrawal form, the applicant indicated that she had filled out the form herself (CB 101).
The withdrawal form also included the following declaration (CB 101):
By submitting this form I declare that:
…
•I understand that upon receiving this advice, you will consider whether the application for review is validly withdrawn. I understand that, once you decide that an application for review is withdrawn, you cannot take any further action in relation to the application for review.
On 19 May 2020, the Tribunal member accepted the applicant’s withdrawal of her application. Evidence of the acceptance of the withdrawal is found in the internal document titled “Any potential recommendation on jurisdiction (withdrawal of application)” which contained a recommendation that the Tribunal member accepted the applicant’s withdrawal and found that the Tribunal no longer had jurisdiction in the matter (CB 102).
On 21 May 2020, the Tribunal notified the applicant that her withdrawal had been accepted (CB 105). The Tribunal also informed the applicant that “accordingly, we have decided that we no longer have jurisdiction to review the delegate’s decision.”
Second Application to the Tribunal to Review the Delegate’s Decision
On 6 July 2020, the applicant lodged a second application to the Tribunal seeking review of the delegate’s decision (CB 108).
On 10 July 2020, the Tribunal sent the applicant an invitation to comment on the validity of her application for review (CB 115). That invitation informed the applicant the Tribunal was of the view the application was not valid and noted the Tribunal had already made a decision in relation to the first application for review. The applicant did not reply to the invitation to comment on the validity of her second application.
TRIBUNAL’S DECISION
On 22 September 2020, the Tribunal found that it did not have jurisdiction in the matter for the following reasons (at [3] to [5] of the reasons):
(a)An application for review of the same delegate’s decision was previously made to the Tribunal.
(b)The Tribunal made a decision on that application on 19 May 2020.
(c)In making that decision the Tribunal had carried out its statutory duty to review a reviewable decision under the Migration Act 1958 (Cth) (Act), citing the following decisions: SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164 at [41]; Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; SZASP v Minister for Immigration and Citizenship [2007] FCA 771
(d)The Tribunal has no jurisdiction to review a delegate’s decision twice.
(e)The Tribunal wrote to the applicant inviting her to comment on the validity of her application, to which the applicant provided no response.
(f)As the delegate’s decision had already been the subject of a valid review by the Tribunal, that decision was no longer a reviewable decision.
GROUNDS IN THE APPLICATION
In the application filed 14 October 2020, the applicant alleged jurisdictional error by the Tribunal on the following grounds:
1.I was not properly invited to hearing and submitted the supporting documents in accordance with law therefore my case didn’t apply to s 426A of the Migration Act 1958.
2.The AAT didn’t properly apply 360(3) of the Migration Act 1958 to.
3.The AAT was unfairfully treated my claims and assess my case evidence with Wendesbury Unreasonableness
(errors as per original)
PROCEEDING BEFORE THE COURT
The matter was initially heard before me on 18 September 2024. At that hearing, the applicant appeared unrepresented, assisted by a Mandarin interpreter. Mindful of the Court’s duties to a litigant in person, I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application, supporting affidavit of the applicant filed on 14 October 2020 and the Minister’s written submissions dated 21 August 2024.
The applicant said she had engaged a migration agent and was unsure as to why he ceased acting for her. The applicant submitted she did not know why the agent had lodged certain documents and that she wanted to extend her stay in Australia. I asked the applicant if she understood she had initially made an application for review to the Tribunal and then subsequently withdrew it. The applicant responded “Because during COVID, my agent did not receive the notification that the visa expired. So I was given 28 days to lodge a new application”: (First Transcript 18 September 2024 TP 14.45).
Given that the applicant was self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]. In undertaking this task, I sought further written submissions from the Minister as to the Tribunal’s powers to accept the withdrawal of the first application by the applicant, in circumstances where no withdrawal mechanism was specified in the Act or the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). I also gave the applicant the opportunity to file submissions in reply to the Minister’s further submissions.
The Minister provided further written submissions dated 20 November 2024. The applicant did not file submissions in reply.
CONSIDERATION
The effect of the applicant’s withdrawal of the first application for review prior to a hearing
The AAT Act relevantly provided at the relevant time:
24Z Scope of operation of this Part
(1)Except for the provisions specified in subsection (2), this Part does not apply in relation to a proceeding in the Migration and Refugee Division.
(2)The following provisions of this Part apply in relation to a proceeding in the Migration and Refugee Division:
(a) section 25;
(b) section 42.
…
42A Discontinuance, dismissal, reinstatement etc. of application
…
Deemed dismissal—applicant discontinues or withdraws application
(1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
The effect of s 24Z of the AAT Act is that s 42A(1A) of the AAT Act, being the express provision for a party to discontinue, did not apply to proceedings in the Migration and Refugee Division.
Therefore, due to the operation of s 24Z of the AAT Act, there was nothing contained within the AAT Act which permitted the applicant to withdraw an application for review, or for the Tribunal to accept a withdrawal. In the absence of an express statutory provision, one must look to the common law to determine whether there is a right for an applicant to withdraw an application and an ancillary right of the Tribunal to accept a withdrawal.
Unless the wording of a statute clearly fetters the right of an applicant to unilaterally withdraw an application, then the common law principle applies, such that an applicant has an inherent right to withdraw. Once an application is withdrawn, the application is no longer subsisting or effective and the Tribunal has no statutory authority to proceed with the matter: Christie v Neaves (2001) 113 FCR 279; SZASD Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 472 at [10].
In Behay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 357 FLR 123 (Behay), Judge Egan considered the effect of s 24Z of the AAT Act on the withdrawal of applications for review to the Tribunal and said:
18 It was accepted that s. 24Z of the AAT Act did not expressly provide, by clear words, that any common law right in existence prior to its enactment would be abrogated.
…
20 The Court finds that it was never the intention of Parliament that an application for review made in the Migration and Refugee Division of the Tribunal could only be finally determined upon the handing down by it of a decision after a full consideration by the Tribunal of all of the material before it in any given review application. Clear words in the body of any amending legislation would have been required for that to be so. In circumstances such as the present, the preferred course for the Court to adopt is for recognition to be given to what was the historical common law position relating to the withdrawal of applications for review made before administrative bodies. That position was held in Queensland Nickel Management Pty Ltd & Great Barrier Reef Marine Park to be as follows:
[8] There is a considerable line of authority to the effect that an applicant to a court, tribunal or other decision-maker, is entitled to withdraw the application at any time, in the absence of a legislative provision removing or fettering that right…
…
22 Having accepted the applicant’s written withdrawal of her application for review before the Tribunal, the Tribunal was functus officio. It had no further power to proceed to hear and determine the applicant’s application for review.
I agree with Judge Egan’s reasons that s 24Z does by clear words fetter the right of an applicant to withdraw an application. Therefore, the common law applies, such as to permit the applicant to validly withdraw the first application. In deciding to accept the applicant’s valid withdrawal of her first application, the Tribunal was correct to conclude it had no jurisdiction to hear the second application for review.
For completeness, I will consider each of the grounds raised in the application for judicial review by the applicant.
Ground 1
While the applicant incorrectly makes reference to s 426A of the Act, given the applicant is a litigant in person, I will read Ground 1 broadly as a contention that she was not invited to a hearing in relation to the second application for review.
The Minister submitted that the applicant was invited to comment in writing regarding the validity of her application and there is nothing in the legislation that requires the applicant to be given an oral hearing to be heard on jurisdictional matters. The Minister further submitted that even if the Court was to find an issue with the procedural fairness afforded to the applicant by the Tribunal, that would not amount to jurisdictional error in circumstances where the Court finds the Tribunal did not have jurisdiction: Sayed v National Disability Insurance Agency(No 5) [2024] FCA 923 [131] to [132]. The applicant stated that there was nothing she wished to say in support of Ground 1.
In my view, the Minister’s submissions are correct regarding the procedural fairness obligations of the Tribunal in matters where the Court determines the Tribunal did not have jurisdiction. This principle was encapsulated in SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271 by Barker J at [46]:
… 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.
I have already determined the Tribunal was correct to conclude that it had no jurisdiction to hear the second application for review. Therefore, it follows that there can be no issue of procedural unfairness which arises in relation to how the Tribunal came to its conclusion that it did not have jurisdiction. Accordingly, no jurisdictional error is disclosed by Ground 1.
Ground 2
The Minister submitted that Ground 2, as written relates to Part 5 reviewable decisions, whereas this matter is in relation to a Part 7 reviewable decision. To the extent that the ground is understood as a complaint that the applicant was not invited to a hearing, the Minister submitted that the same issues arise as with Ground 1. The applicant stated that she did not have anything to say in relation to Ground 2.
In my view, Ground 2 does not disclose any jurisdictional error for the same reasons as Ground 1. That is, the question of whether the Tribunal should have invited the applicant to a hearing is irrelevant, in circumstances where I have determined that the Tribunal was correct in its decision that it did not have jurisdiction.
Ground 3
The Minister submitted that Ground 3 is misguided as it is essentially a contention about the reasonableness of the decision regarding the merits of the application. The Minister submitted that, as the decision in question turned on whether the Tribunal had jurisdiction, there can be no test for unreasonableness to be applied to the decision.
When asked whether the applicant had anything to say in relation to Ground 3, the applicant said “I was told my visa has expired. I didn’t lodge it within 28 days, because my agent didn’t receive the notice. Therefore, something happened to my visa” (Second Transcript 6 December 2024 TP 33.10).
As the Tribunal correctly determined it did not have jurisdiction to assess the substance of the second application, no jurisdictional error is disclosed by Ground 3.
CONCLUSION
For the above reasons, the application is dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 9 January 2025
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