FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOKUWITHANA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 176 |
| Catchwords: MIGRATION – Whether the Tribunal made a decision or purported decision on 9 April 2014 or whether the Tribunal made a decision or purported decision on 11 August 2014 – whether the Tribunal acted without jurisdiction inviting the Applicants to a hearing on 1 August 2014 – whether the decision made following this hearing was affected by jurisdictional error – held that the Tribunal made a decision on 11 August 2014 which was affected by jurisdictional error – writs issued. |
| Legislation: Australian Citizenship Act 2007 (Cth), s.24 Migration Regulations 1994 (Cth), reg.2.75(2)(b), cl.1223A of Sch.1, cl.457 of Sch.2, cl.457.223 of Sch.2 |
| First Applicant: | CHAMITHA LOKUWITHANA |
| Second Applicant: | THISARI CHAMILANI SIRIMANNE |
| Third Applicant: | SANTHUL LOKUWITHANA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1774 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 18 February 2016 and 17 October 2016 |
| Date of Last Submission: | 17 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 2 February 2017 |
REPRESENTATION
| Counsel for the Applicants: | Mr Poynder |
| Solicitors for the Applicants: | Asia Pacific Lawyers |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 11 August 2014.
A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the Applicants for review of the delegate of the First Respondent’s decision.
The First Respondent pay the Applicants’ costs in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1774 of 2014
| CHAMITHA LOKUWITHANA |
First Applicant
| THISARI CHAMILANI SIRIMANNE |
Second Applicant
| SANTHUL… |
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Details
- AGLC
- Lokuwithana v Minister for Immigration [2017] FCCA 176
- Case
- [2017] FCCA 176
- Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by the applicants, Lokuwithana and others, against a decision of the Administrative Appeals Tribunal (the Tribunal). The dispute centred on the Tribunal's review of a decision made by the Department of Immigration and Border Protection (the Department) regarding the applicants' visa applications. The case was heard by Judge Jones.
The primary legal issue before the court was whether the Tribunal had failed to conduct a proper review of the Department's decision, thereby failing to exercise its jurisdiction. This question arose from the Tribunal's reliance on an erroneous case note that incorrectly stated the applicant did not have an approved nomination by a sponsor, despite departmental records indicating otherwise. The court was required to determine if this reliance constituted a failure to consider relevant evidence and, consequently, a failure to conduct a review as mandated by the Act.
Judge Jones reasoned that, while the applicants had failed to respond to a request for information, which would ordinarily entitle the Tribunal to proceed without an invitation to a hearing, the Tribunal's reliance on an erroneous case note was critical. Drawing on the principles established in *Bhardwaj*, the court held that the Tribunal's decision was not a "decision on review" because it was based on a mistaken understanding of the facts, specifically regarding the applicants' nomination status. This mistaken understanding led the Tribunal to proceed as if the applicants did not wish to be heard, when in fact the applicants believed the Tribunal possessed the correct information. This amounted to a failure to exercise jurisdiction, not merely a jurisdictional error.
The court found that the Tribunal had failed to conduct a review in accordance with the Act. Consequently, the Tribunal's decision was set aside.
The primary legal issue before the court was whether the Tribunal had failed to conduct a proper review of the Department's decision, thereby failing to exercise its jurisdiction. This question arose from the Tribunal's reliance on an erroneous case note that incorrectly stated the applicant did not have an approved nomination by a sponsor, despite departmental records indicating otherwise. The court was required to determine if this reliance constituted a failure to consider relevant evidence and, consequently, a failure to conduct a review as mandated by the Act.
Judge Jones reasoned that, while the applicants had failed to respond to a request for information, which would ordinarily entitle the Tribunal to proceed without an invitation to a hearing, the Tribunal's reliance on an erroneous case note was critical. Drawing on the principles established in *Bhardwaj*, the court held that the Tribunal's decision was not a "decision on review" because it was based on a mistaken understanding of the facts, specifically regarding the applicants' nomination status. This mistaken understanding led the Tribunal to proceed as if the applicants did not wish to be heard, when in fact the applicants believed the Tribunal possessed the correct information. This amounted to a failure to exercise jurisdiction, not merely a jurisdictional error.
The court found that the Tribunal had failed to conduct a review in accordance with the Act. Consequently, the Tribunal's decision was set aside.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 349 of the Act provides: Tribunal powers on review of Part 5-reviewable decisions(1) The Tribunal may, for the purposes of the review of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.(2) The Tribunal may:(a) affirm the decision; or(b) vary the decision; or(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or(d) set the decision aside and substitute a new decision; or(e) if the applicant fails to appear--exercise a power under section 362B in relation to the dismissal or reinstatement of an application.(3) If the Tribunal:(a) varies the decision; or The remaining provisions of pt.5 of the Act set out in detail the manner in which, and the obligations upon which, the Tribunal must review the decision. In Bhardwaj, Gaudron and Gummow JJ said at [42] to [44]:42. The function of the Tribunal was to conduct a review of the delegate's decision in accordance with the Act. In particular, the Tribunal was required to give Mr Bhardwaj an opportunity to attend the hearing, to give evidence and put argument. And it is implicit from the terms of s 368(1) detailing the matters to be recorded in the written statement embodying a decision that the Tribunal was to reach a decision only after considering the evidence and the argument advanced against the cancellation of Mr Bhardwaj’s visa.43. The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the September decision was, thus, not a “decision on review” for the purposes of ss 367 and 368 of the Act.44. To say that the September decision was not a “decision on review” for the purposes of ss 367 and 368 of the Act is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness … In Bhardwaj, the Tribunal failed to perform its statutory task to conduct a review, because it failed to provide Mr Bhardwaj with an opportunity to attend a hearing, give evidence and make submissions. It did not provide this opportunity because it proceeded on a mistaken understanding that Mr Bhardwaj did not seek the opportunity to be heard. In these proceedings, as the Applicants properly concede, the Applicants, having failed to respond to a request from the Tribunal for information about whether the Applicant had an approved nomination by a sponsor that had not expired, the Tribunal was entitled to proceed to make its decision without inviting the Applicant to attend. However, what is critical in the particular circumstances in these proceedings is that, although the Department’s electronic ICSE files correctly recorded that the Applicant met this criteria for the visa, and the Applicant was most certainly aware he met this criteria, the Tribunal took into account an erroneous case note for which there was no evidence. This case note wrongly stated the Applicant did not have a current approved nomination by a sponsor. It is no small step to conclude that the Tribunal proceeded on a mistaken understanding that the Applicant did not wish to be heard which arose because the Applicant mistakenly understood the Tribunal had before it evidence that he had an approved nomination by a sponsor, which had not expired.
Ratio Decidendi
Legal Principle Established
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