Grice and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2436
•21 July 2021
Grice and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2436 (21 July 2021)
Division:GENERAL DIVISION
File Number: 2020/6980
Re:Adam Grice
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:21 July 2021
Place:Perth
The application for reinstatement of an application for review of a decision of a delegate of the Respondent under s 510CA(4) of the Migration Act 1958 (Cth) (Migration Act) not to revoke the cancellation of the Applicant’s visa which had been cancelled under s 501(3A) of the Migration Act is refused.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – application for reinstatement of an application for review – decision of a delegate not to revoke the cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act – Applicant withdrew application for review – Applicant alleged mistaken belief that he was unable to represent himself in the Tribunal proceedings – alleged error not of the type that applies in relation to s 42A(10) of the AAT Act – application destined to fail because it was not lodged within the time required by s 500(6B) of the Migration Act – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29(7), 42A, 42A(1), 42A(1A), 42A(1AA), 42A(1B), 42A(8), 42A(8A),42A(8B), 42A(9), 42A(10)
Migration Act 1958 (Cth) – ss 500(6B), 500(6L), 501(3A), 501(6)(a), 501(7)(c), 501CA(3)(b), 501CA(4), 501CA(4)(a)
CASES
Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385
Burke v Comcare [2014] FCA 169
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383
Greig v Commissioner of Taxation (2020) 275 FCR 445
KQHR and Minister for Immigration and Border Protection [2018] AATA 684
Pascoe v Federal Commissioner of Taxation (1956) 30 ALJR 402
Russell v Minister for Home Affairs (2019) 275 FCR 334
Somba v Minister for Home Affairs [2020] AATA 425
Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196
White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204
Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations (2008) 104 ALD 662
Wilson and Commissioner of Taxation (2007) 98 ALD 99
Zablotsky and Secretary, Department of Social Services [2019] AATA 4367
SECONDARY MATERIALS
Dennis Pearce, Administrative Appeals Tribunal (LexisNexis, 5th ed, 2020)
REASONS FOR DECISION
Deputy President Boyle
21 July 2021
THE APPLICATION
This is an application for reinstatement of an application for review of a decision of a delegate of the Respondent (Minister) under s 510CA(4) of the Migration Act 1958 (Cth) (Migration Act) not to revoke the cancellation of the Applicant’s visa which had been cancelled under s 501(3A) of the Migration Act.
BACKGROUND
The facts set out below are largely taken from the Minister’s submissions dated 30 March 2021 (Minister’s submissions) and a not in dispute.
The Applicant is a 27-year-old citizen of the United Kingdom. He first arrived in Australia on 6 June 2002 and was granted a Spouse (Class BS) (Subclass 801) visa on 4 November 2008.
On 23 June 2020 the Applicant was convicted of unlawfully doing grievous bodily harm with a circumstance of aggravation and sentenced to a term of imprisonment of two years and four months. He was further convicted of breach of ISO and sentenced to a term of imprisonment of four months, and re-offending whilst subject to a conditional release order or community order for which he received no penalty.
On 2 July 2020 the Applicant was convicted of breach of a police order and sentenced to a term of imprisonment of one month; common assault in circumstances of aggravation or racial aggravation and sentenced to a term of imprisonment of two months, and threaten to kill for which he was sentenced to a term of imprisonment of four months.
On 8 July 2020 the Applicant was given notice that his visa was cancelled under s 501(3A) of the Migration Act with effect from that date. The visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (ss 501(6)(a) and 501(7)(c) of Migration Act).
On 22 July 2020 the Applicant requested revocation of the cancellation of his visa.
On 29 October 2020 a delegate of the Minister decided under s 501CA(4) of the Migration Act not to revoke the cancellation of the Applicant’s visa. The Applicant was notified of the delegate’s decision on 29 October 2020.
By an application received by the Administrative Appeals Tribunal (AAT) on 10 November 2020 the Applicant sought review of the delegate’s decision not to revoke the cancellation of the Applicant’s visa (Application for Review).
On 11 November 2020 the Applicant’s legal representative filed a notice of withdrawal of the Application for Review (Notice of Withdrawal).
On 17 February 2021 the Applicant applied for reinstatement of the Application for Review.
THE HEARING AND THE EVIDENCE
The application for reinstatement was heard on 23 April 2021. The applicant appeared on his own behalf and the Minister was represented by Mr J Kyranis of Sparke Helmore Lawyers. The hearing was conducted by telephone.
At the time of providing the Minister’s submissions the Minister also lodged a bundle of documents (Tender Bundle). The Applicant provided a letter containing submissions dated 24 March 2021 (A1) in support of the application which was received by the Tribunal on 30 March 2021. At the time of filing the submissions the Applicant also filed a bundle of documents. With the exception of documents prepared by and correspondence from the Department of Communities Child Protection and Family Support and a Department of Justice Individual Management Plan, the documents lodged by the Applicant with his submissions were included in the Tender Bundle.
On 10 June 2021, that is over six weeks after the hearing, the Tribunal received further documents from the Applicant, including statements from members of the Applicant’s family, and a handwritten submission. Those documents and the handwritten submission appeared to relate to the Applicant’s rehabilitation, the circumstances of some of his offending and provided detail of the steps that he took to lodge the application for review in the Tribunal. In relation to the last of those issues, the information set out in the submission was the same as the Applicant’s evidence at the hearing. For reasons that become apparent below, the submissions and the documents are not relevant to the decision that I make.
LEGISLATION
Section 42A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) relevantly provides:
(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.
...
(1B)If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision.
...
(8)If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
…
(8B)For the purposes of subsections (8) and (8A), the period is:
(a)28 days after the party receives notification that the application has been dismissed; or
(b)if the party requests an extension—such longer period as the Tribunal, in special circumstances, allows.
(9)If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
THE PARTIES’ SUBMISSIONS
The Applicant
The basis of the application for reinstatement is set out in the Applicant’s undated handwritten letter received by the AAT on 17 February 2021[1] (which the Tribunal has treated as an application for reinstatement), and the Applicant’s letter dated 24 March 2021.[2]
[1] R1/132.
[2] A1.
The above letters were, relevantly, as follows:
(a)Letter received by the AAT on 17 February 2021.
… I’m writing in relation to an immigration decision to cancel my 501 visa. At the time it was given … the decision I was under a false impression self-representation wasn’t an option. Can a extension to the time to respond be made. I’ve lived in Australia since an eight year old child. I’m not someone whos just come here. I was a kid I wasn’t made aware of the importance of citizenship as I arrived on my parents visa. I’m a first time offender I received a three year sentence. I have an Australian daughter who’s five years old. What has happened to me is wrong this matter needs to be reversed so I can be a Dad to my daughter. I’m not a career criminal. …
(Without alteration.)
(b)Letter dated 24 March 2021.
… The circumstances leading to my reinstatement application were the following.
After my lawyers withdrew my original response following their request for $15,000, I made further enquiries with them if there was anything more that could be done. To which I was told no other than the High Court. So I accepted that as they were lawyers. I proceeded thinking nothing could be done applied for parole which was denied. Then I met someone in the library where I explained my situation and my concerns around obviously my daughter. He then informed me I could in fact make another application and gave me information about the appeals tribunal. At that I wrote the letter you have and rang my family who like me were happy. If I knew I could proceed when my lawyers withdrew my application on my own I would have.
I do believe I have a strong case or at very least deserve a chance to put my points forward.
-These are my first offences other than driving and nusanse offences.
-I have shown remorse and a willingness to sort treatment needs.
-The ties to Australia are great having arrived at the age of eight.
-The connection I have with my five year old daughter as indicated by the department of communities in a recent care plan.
-I have never received an official warning.
-I’ve recently request to assessments to be assessed from which my offending behaviour treatment needs will be met.
-I was never required to do any councilling as a result of the AOBH charge.
-Since receiving my visa cancellation and sentence I’ve had no prison charges moved to self-care and took a trusted position working in the prison infirmary 7 days a week.
-In April I started a 1 month Drug course I applied for.
-I’m subject to a PSSO following my release into the community.
-It’s looking like I’ll be doing the full 3 year sentence.
(Without alteration.)
The Minister
The Minister’s submissions were to the following effect:
(a)The relevant legislative provision is s 42A(10) of the AAT Act.
(b)The Full Court of the Federal Court considered the phrase “dismissed in error” in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs[3] (Goldie).
(c)In the decision of KQHR and Minister for Immigration and Border Protection[4] (KQHR), Deputy President Forgie considered the application of Goldie in circumstances where the applicant had withdrawn the application.
(d)The “error” claimed by the Applicant is that at the time that he instructed his then lawyers to withdraw the application for review, he “was under a false impression self-representation was no option” (see [17(a)] above). That claim cannot be accepted as true for the reasons identified by the Minister in para 21 of the Minister’s submissions.
(e)Even if such error was accepted, it could not have had any bearing on the dismissal as at the time that the Applicant gave his representative instructions to withdraw the Application for Review, he was patently aware that lack of legal representation was not a barrier to the Application for Review.[5]
(f)In reality, the application for reinstatement appears to be based on the Applicant’s regret at withdrawing his application which does not meet the threshold required by s 42A(10) of the AAT Act.
(g)Even if the Tribunal were to find that the Application for Review was dismissed in error, it should not exercise its discretion to reinstate the application because it would not be appropriate to do so, citing the principles for the exercise of the discretion set out in White and Secretary, Department of Families, Community Services and Indigenous Affairs[6] (White) at [21].
(h)The Applicant failed to make the application for reinstatement within the 28-day period for such an application under s 42A(8B) of the AAT Act and has provided no explanation for the delay nor requested an extension of time to apply for reinstatement.[7]
(i)Whilst the Minister would suffer no prejudice should the Application for Review be reinstated, the public interest would not be served by that application being reinstated and a relevant consideration is also the issue of fairness between the Applicant and other persons in a similar position.
(j)Reinstatement of the Application for Review would have the effect of the 84-day time limit (pursuant to s 500(6L) of the Migration Act) being circumvented and that is a matter that is appropriate to take into account by the Tribunal and weighs against reinstatement.[8]
(k)The Application for Review has no reasonable prospects of success as it was not made within the nine-day period prescribed by s 500(6B) of the Act.
[3] (2002) 121 FCR 383; [2002] FCAFC 367.
[4] [2018] AATA 684.
[5] The submission appears to be circular, however, is not relevant to the decision made.
[6] (2007) 97 ALD 204; [2007] AATA 1712.
[7] I note that s 42A(8B) has no application in the present case because it only applies to ss 42A(8) and 42A(8A), neither of which apply in the present case (see [21] below).
[8] Citing Somba v Minister for Home Affairs [2020] AATA 425 at [62]–[63].
CONSIDERATION
The Tribunal’s powers to reinstate an application arise under sub-ss 42A(8)–(10) of the AAT Act (see [15] above). Deputy President Forgie opined in KQRH at [9] that:
Sections 42A(8) to (10) provide for reinstatement of an application that has been taken to have been dismissed under s 42A(1B) or that has been dismissed in error. Two avenues are provided for in the circumstances of this case. One is provided for in ss 42A(8) to (9) and applies when the Tribunal is taken to have dismissed an application under s 42A(1B). The other is provided for in s 42A(10) and is relevant when it appears that an application has been dismissed in error. Submissions were made in the context of s 42A(10) but the matter could have equally been considered under ss 42A(8) to (9) for the application for reinstatement was made within the time provided for in s 42A(8B). I have considered the application for reinstatement in light of the provisions of s 42A(10) but note that, putting aside the need to establish an error under s 42A(10) and the need to establish special circumstances if an application under s 42A(8) is made outside the prescribed time limit, similar factors are otherwise relevant in determining an application for reinstatement under either ss 42A(8) to (9) or under s 42A(10). …
A similar summary of the Tribunal’s power to reinstate an application is set out by Dennis Pearce, Administrative Appeals Tribunal (LexisNexis, 5th ed, 2020) at [15.14] follows:
Section 42A(8) and (9) of the AAT Act relate to reinstatement of an application that has been withdrawn under s 42A(1) or which has been dismissed under s 42A(2) for failure of an applicant to appear … Section 42A(10) applies to all other types of dismissal under s 42A…
The caveat that I would add to both of the above statements is that, where an application has been withdrawn under s 42A(1), an application for reinstatement cannot be made by the applicant. Section 42A(8), by its opening words, applies where the Tribunal is taken to have dismissed an application under s 42A(1B) (i.e. the applicant has withdrawn the application under ss 42A(1A) or 42A(1AA)). However, s 42A(8), by the words in parenthesis in lines two and three, specifically excludes an applicant seeking reinstatement of an application under this section. To that extent I do not see how that application for reinstatement in KQRH could have equally been considered under ss 42A(8) to (9) because the application was one made by the applicant. My reading of s 42A(8) is that an applicant who has withdrawn an application can only apply for reinstatement under s 42A(10). That was, in effect, the basis upon which the present application for reinstatement proceeded.
Was the application dismissed in error?
The primary issue, therefore, is whether the circumstances in which the Applicant withdrew the Application for Review was an error for the purposes of s 42A(10) of the AAT Act. The Minister’s primary argument on that issue is that the Applicant was not labouring under the misunderstanding that he claims.
Was the Applicant labouring under the claimed misunderstanding?
The claimed misunderstanding was described by the Applicant in his letter dated 17 February 2021 (see [17(a)] above) as being “[a]t the time I was given … the decision I was under a false impression self-representation wasn’t an option”.
The first observation is that the relevant consideration is whether the Applicant was labouring under the relevant misunderstanding at the time that he withdrew the Application for Review, not what his understanding was at the time that he received the delegate’s decision. I assume, however, that the Applicant’s argument is that he was labouring under the claimed misunderstanding at the time that he withdrew, or gave instructions to his lawyers to withdraw, the Application for Review.
The Minister argues that that was clearly not the case because the Applicant in fact made the application to the Tribunal without legal representation. I agree. Clearly, the Applicant was not labouring under the claimed misunderstanding at the time that he lodged the Application for Review with the Tribunal and there is nothing to indicate why the Applicant would have formed the claimed misconception before the time that he prepared and lodged the application and when it was withdrawn days later.
The letter of 24 March 2021[9] (see [17(b)] above) does not really add any further particular to the misunderstanding which he claims to have had at the time of the withdrawal of the Application for Review, but rather (I assume) sets out the circumstances by which the Applicant was disabused of his misunderstanding. The law firm acting for the Applicant in filing the notice of withdrawal, and to which I assume he is referring in his letter of 24 March 2021, is a very experienced and reputable firm which specialises in migration law and appears regularly before the Tribunal. I do not believe, and I note that the Applicant does not contend, that that law firm would have advised the Applicant prior to his withdrawal of the Application for Review that he needed to be legally represented in the proceedings or would have said anything that would have implied that that was the case. I do not accept the claim in the Applicant’s letter of 24 March 2021 that the lawyer from that firm who he claims to have spoken to would have advised him that the only alternative to proceeding with the Application for Review would be to take action in the High Court. That is not even an alternative, let alone the only alternative.
[9] A1.
The Applicant’s evidence at the hearing in relation to the conversation that he had with his then lawyers was as follows:
APPLICANT: … But it was the conversation went between those that they wanted the $15,000 and they said, ‘You can either choose to pay us or take the money back to the UK.’ That was the conversation that we had, and it was not even my money. The money would have to be repaid to my parents. And it was just a - but then, following that conversation, I asked if there was anything further that could be done, and they told me that the only thing you can do is take it to the High Court and then that would be a case of legal - technicalities, or legalities. Did the Minister act within the law? But I definitely wasn’t told I could apply for a reinstatement of the application, and I definitely wasn’t told about the 28 days I had to apply for the reinstatement of the application.
TRIBUNAL: No, but - sorry - we’re talking about a period before that?
APPLICANT: Yes.
TRIBUNAL: We’re just looking at your instruction to withdraw the application. Forget the stuff about whether or not there was any advice as to reinstatement, because you wouldn’t have had that discussion at that stage because you wouldn’t have withdrawn it?
APPLICANT: Yes, that’s correct.
TRIBUNAL: You don’t dispute, though, that you gave instructions - or instructions were given on your behalf - to Estrin Saul to lodge or to withdraw the application?
APPLICANT: Yes, well, that’s correct based off the money side.
TRIBUNAL: Yes. Okay. Sorry. Now, just explain to me again. Did you have any conversation with anybody at Estrin Saul where they said, ‘You have to be represented by lawyers’?
APPLICANT: No, that was just the impression I was given.
TRIBUNAL: How was that impression given to you?
APPLICANT: Just by people I spoke to in gaol, and with how they - with what they suggested by their wording saying, ‘You can either take the money -’ which was effectively to pay them to be represented in the tribunal, ‘or go back to the UK with the money’. I thought there was not an option to - it wasn’t an option to proceed self-representation.
TRIBUNAL: But you knew, at that stage, didn’t you, that you could make an application self-represented, because you had actually made the application?
APPLICANT: Yes, that’s correct. That was based on them - the paperwork I received in the reception when they said about the Administrative Appeals Tribunal. I was worried that the 9 days would elapse, so I made the application, and, in terms of the actual hearing, I was - by all accounts, everyone I’d spoken to - a lawyer needed to be present. Yes.
TRIBUNAL: Is there anything that you read in the papers that were presented to you, in October when the decision was handed down, which referred to your ability to make an application to the Administrative Appeals Tribunal? Was there anything in that documentation which you took to be saying that you could only be represented by lawyers?
APPLICANT: No. It just of what people said to me and things like that.[10]
[10] transcript at 12–13.
The Applicant’s evidence was confused and unconvincing. The obvious problem with his claim of labouring under the misunderstanding is that, guided by the material given to him with the delegate’s decision not to revoke the decision to cancel his visa, he made the Application for Review to the Tribunal. As at 29 October 2020 when he prepared and arranged for the lodgement of that application through the prison authorities,[11] the Applicant was clearly not labouring under the claimed misunderstanding.
[11] R1/123.
Although made in the context of a taxation case, Fullagar J’s following comment in Pascoe v Federal Commissioner of Taxation[12] (Pascoe) at 403, cited by Steward J in Greig v Commissioner of Taxation[13] at [214] is apposite:
Where a person’s purpose or object or other state of mind in relation to a given transaction is in issue, the statements of that person in the witness box provide, in a sense, the “best” evidence, but, for obvious reasons, they must, as Cussen, J., observed in Cox v. Smail ((1912) V.L.R. 274, at p. 283), “be tested most closely, and received with the greatest caution”.
[12] (1956) 30 ALJR 402.
[13] (2020) 275 FCR 445.
I do not accept the Applicant’s claim that he was labouring under the misunderstanding that he could not represent himself in the Application for Review and that that was the reason he withdrew the application. He cannot point to any advice or circumstances which could have caused him to have that belief and, more significantly, his own actions belie the claim. This finding is, in effect, fatal to the Applicant’s application for reinstatement. For completeness, however, I will address a number of other issues that were canvassed at the hearing and in the parties’ submissions.
Was the claimed misconception an “error” for the purposes of s 42A(10)?
Deputy President Forgie in KQHR noted at [12]:
Section 42A(10) does not give any guidance as to when an application has been “dismissed in error” or the relevant considerations that guide the exercise of the discretion given to the Tribunal. Beginning with the words “dismissed in error”, I note that, in a joint judgment in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs, Wilcox and Downes JJ considered whether the Tribunal itself had to be in error in order to enliven the power given by s 42A(10). They decided:
“... The stated condition for the exercise of the subs (10) power is that ‘it appears to the Tribunal that an application has been dismissed in error’. The subsection does not impose any qualification or limitation on the word ‘error’.
The only limitations that we can see in s 42A(1) are:
(i) that the Tribunal has dismissed the application; and
(ii) that the act of dismissal was attended by error.
We do not think it necessary, in order to enliven the Tribunal’s power under s 42A(1), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitors’ mistake induced the dismissal of the action, it could properly be said the application had been ‘dismissed in error’.”
(Footnotes omitted.)
In that case Deputy President Forgie found at [17]:
I am satisfied, therefore, that the legal advice that KQHR received and on which he based his decision to withdraw his application for review was based on an erroneous understanding that his application for a protection visa was a valid application. That is not an error of forensic tactics but of substance. It was an error that led KQHR to change his position in substance and it was an error that led to his application being taken to be dismissed by operation of s 42A(1B) of the AAT Act. I am satisfied that it is an error within the meaning of s 42A(10) and so enlivens the discretion conferred by that provision.
Even if the Applicant had been labouring under the misunderstanding that he claims, which I have found that he was not, I am not satisfied that that would be an error of the type which comes within the scope of s 42A(10) of the AAT Act.
Deputy President Forgie in Wilson and Commissioner of Taxation[14] (Wilson), at [11]–[14] provided a detailed review of the authorities and analysis of the meaning to be given to the word “error” in s 42A(10) of the AAT Act. I respectfully adopt that analysis.
[14] [2007] AATA 1721; (2007) 98 ALD 99.
As Deputy President Forgie’s analysis indicates, the “error” for the purposes of s 42A(10) does not have to be an “administrative error” by the Tribunal as was argued in some of the cases to which she refers (e.g. Goldie). As Deputy President Forgie noted in Wilson at [14], she had in White at [11]–[20], set out the history of the introduction of s 42A(10) and reviewed the cases that had considered the background to the introduction of s 42A(10), in particular the Full Court in Brehoi v Minister for Immigration and Multicultural Affairs.[15]
[15] (1999) 58 ALD 385.
Based on the above cases and the factual circumstances considered in those cases, “error” in s 42A(10) is broader than an administrative error by the Tribunal. While “error” could include an error by the applicant’s lawyer which results in the withdrawal of an application (see the example given in Goldie at [29]), I do not accept that an applicant misunderstanding the law is an “error” of the type envisaged by s 42A(10). To expand the meaning of “error” to include a self-induced misunderstanding of the law goes beyond what could reasonably have been meant by the legislation. The Court in Goldie observed (in obiter) at [30] that the word “administrative” could not be “imported” into s 42A(10) notwithstanding that the Senate explanatory memorandum for the bill referred to administrative errors, because the language adopted by the AAT Act did not include the adjective “administrative” (Goldie at [33]). For the same reason the word “error” in s 42A(10) cannot be read to mean self-induced misunderstanding. To do so would go beyond the ordinary meaning of the language of the section. If the legislature had meant s 42A(10) to cover an applicant’s self-induced misunderstanding of the law, it would have used language more amenable to that interpretation.
Even if an error is established, should the discretion to reinstate be exercised?
As noted by the Minister (see [18(g)] above), even if I were to accept that the Application for Review was withdrawn as the result of an error, I would still have to be satisfied that it was appropriate to exercise the discretion to reinstate the application. One of the primary considerations identified by Deputy President Forgie in White (at [25]) and KQHR (at [18]) in exercising that discretion, is the merit of the application of which reinstatement is sought (see also Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations;[16] at [22]; Zablotsky and Secretary, Department of Social Services;[17] Somba and Minister for Home Affairs[18] (Somba)).
[16] (2008) 104 ALD 662; [2008] AATA 811.
[17] [2019] AATA 4367.
[18] [2020] AATA 425.
The Courts and the Tribunals have generally accepted that the considerations to be taken into account in exercising the discretion to reinstate an application are the same as those in considering whether to grant an extension of time to bring an appeal (see Somba [23]–[35]).
The merits of the application
One of the critical considerations identified in the above cases for the exercise of the discretion to reinstate or extend time is the merit of the substantive application. As was noted by Greenwood J in Burke v Comcare[19] (Burke) at [53]:
There is simply no point granting leave to extend time to file a notice of appeal to agitate the questions as framed by Mr Burke because any such appeal would necessarily fail.
[19] [2014] FCA 169.
There is no point in reinstating an application if the application will necessarily fail. As noted at [18(k)] above, the Minister argues that the application is destined to fail because the Application for Review was not lodged with Tribunal within the nine days prescribed by s 500(6B) of the Migration Act. That section provides:
If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
It is not disputed that the Applicant received notification of the decision under s 501CA(4) on 29 October 2020. The Applicant signed an acknowledgment of receipt of the decision and a copy of relevant documents on 29 October 2020.[20] It is also beyond dispute that the Application for Review was received by the Tribunal on 10 November 2020.[21] It is therefore apparent on the face of the documents that the Application for Review was not made within nine days after the Applicant was advised of the delegate’s decision.
[20] R1/118.
[21] R1/123.
The effect of s 500(6B) is that the Tribunal has no power to extend time for making an application for review of a decision under s 501CA(4) not to revoke the cancellation of a visa. The power to extend time for making an application is contained in s 29(7) of the AAT Act which, by virtue of s 500(6B), does not apply to an application for the review of a decision under s 501CA(4) (see [40] above).
The Applicant contended that he had done everything within his power to lodge the application within the required time. That may well be the case, however, it is of no assistance to the Applicant. While the Full Court has held that an applicant is to be considered to have “made representations” for the purposes of ss 501CA(3)(b) and 501CA(4)(a) of the Migration Act when the representations were “dispatched” from prison rather than when they were received by the Department,[22] the operative words in s 500(6B) are “lodged with the Tribunal”. The reasoning of the Full Court in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[23] which was looking specifically at the construction of the word “make” in the context of s 501CA(4)(a), cannot be applied to the phrase “lodged with the Tribunal” in s 500(6B). The meaning of those words is clear and unambiguous. Irrespective of the injustice that may result to an applicant who has done everything within his or her powers to lodge an application for review with the Tribunal within the prescribed time, an application not “lodged with the Tribunal” within the prescribed time must be dismissed. That is the case here.
[22] Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 (Rares, Anastassiou and Stewart JJ) (Stewart) at [43].
[23] [2020] FCAFC 196.
The same situation arose in Russell v Minister for Home Affairs[24] (Russell) in which the Full Court considered the operation and meaning of s 500(6B) of the Migration Act. As in this case, through no fault on her part, Ms Russell was unable to lodge (in that case electronically) her application for review of a decision under s 501CA(4) in the Tribunal within nine days of her receiving the decision. In Russell the Court accepted that on a proper construction of s 500(6B) the application for review had to be received within the prescribed nine days, which, through no fault of the appellant, it had not been. The Court observed at [27] that:
In such circumstances it is unfortunate that Ms Russell is now deprived of an opportunity to have a merits review of her application. Nevertheless, we do not consider that she is able to succeed on the basis of the arguments advanced.
[24] (2019) 275 FCR 334; [2019] FCAFC 110 (Nicholas, Bromwich and Burley JJ).
I must therefore agree with the Minister’s submission that even if I were to get to the stage of considering the exercise of the discretion to reinstate the Application for Review, that discretion should not be exercised as it would be pointless to do so, given the Application for Review has no prospects of success.
Findings
I find that:
(a)the Applicant was not, at the time that he instructed his lawyers to withdraw the Application for Review, under the mistaken belief that he was not able to represent himself in the proceedings;
(b)even if he did have such a misunderstanding, that it is not an “error” for the purposes of s 42A(10) of the AAT Act; and
(c)even if he did have such a misunderstanding and even if such a misunderstanding is an “error” for the purposes of s 42A(10), the discretion to reinstate should not be exercised because the Application for Review is destined to fail because it was not lodged with the Tribunal within the time prescribed by s 500(6B) of the Migration Act.
DECISION
The application for reinstatement of the Application for Review of a decision of a delegate of the Minister under s 510CA(4) of the Migration Act not to revoke the cancellation of the Applicant’s visa which had been cancelled under s 501(3A) of the Migration Act is refused.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 21 July 2021
Date of hearing: 23 April 2021 Applicant: In person Counsel for the Respondent: Mr J Kyranis Solicitors for the Respondent: Sparke Helmore Lawyers
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