Minister for Immigration v BSD17
[2017] FCCA 2888
•6 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MINISTER FOR IMMIGRATION v BSD17 & ANOR | [2017] FCCA 2888 |
| Catchwords: MIGRATION – Application of Minister for Immigration –effect of conversion legislation – power for matters to be considered by the Administrative Appeals Tribunal – whether the matter was properly before the Administrative Appeals Tribunal – finding that the Administrative Appeals Tribunal was in jurisdiction error by concluding that there was no jurisdiction for the Administrative Appeals Tribunal to hear the matter – application granted. |
| Legislation: Migration Act 1958 (Cth), ss.35A, 45AA 69, 415, 426A |
| Applicant: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| First Respondent: | BSD17 |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 360 of 2017 |
| Judgment of: | Judge Vasta |
| Hearing date: | 6 November 2017 |
| Date of Last Submission: | 6 November 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 6 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Wheatley |
| Solicitors for the Applicant: | Clayton Utz |
| Counsel for the First Respondent: | Mr Boccabella |
| Solicitors for the First Respondent: | H & N Lawyers |
ORDERS
That the decision of the Tribunal of 16 March 2017 be brought into this Court and a writ of certiorari issue to quash the decision of the Tribunal.
A writ of mandamus issue directing the Tribunal to determine the matter according to law and that the Tribunal has an application for an XD Class visa before it and it is to decide on the merits whether that visa ought to be granted or not.
The First Respondent pay the Applicant's costs of and incidental to application fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 360 of 2017
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Applicant
And
| BSD17 |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
This is a very unusual matter because the Minister is the actual Applicant. What has occurred in the matter is that the First Respondent made an application for a protection (XA) visa which is a permanent protection visa.
The delegate interviewed the First Respondent in October 2014. After that date, it would seem that the delegate was in the midst of weighing up all of the evidence to make the decision as to whether to grant the visa or to not grant the visa.
On 16 December 2014, the schedule, in the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, dealing with these matters, came into effect. This meant that a new s.35A of the Migration Act 1958 (Cth) (“the Act”) was then enacted, which proscribed a number of protection classes of visas; the most pertinent being an XA visa, which is a permanent protection visa, and an XD visa, which is a temporary protection visa.
The Act and the schedule also came into effect to insert s. 45AA, which dealt with conversion visas; that is, the application for one visa is to be taken as an application for a different visa. Without going through all of the legislation, it meant that the First Respondent was no longer eligible to ask for an XA visa, because he was an unauthorised maritime arrival, but was entitled to apply for an XD visa.
The legislation meant that the application for the visa was taken to be, and to have always been, a valid application for a temporary protection (class XD) visa, and was taken not to be, and never to have been, a valid application for a protection (class XA) visa.
Unfortunately, the delegate of the Minister did not seem to realise the fact that the matter that he was considering was not, after 16 December 2014, an XA visa application any more, but an application for an XD visa. The delegate made the decision to deny the First Respondent a XA protection visa. That decision was made on 17 December 2014.
The First Respondent then applied to the Refugee Review Tribunal. That Tribunal became the Administrative Appeals Tribunal before the First Respondent’s review could be heard.
The member of the AAT who looked at the First Respondent’s matter did note that the application was an application for an XD visa, but then proceeded to look at the matter using sections 91R and 91S, which were repealed when the Act came into force on 16 December 2014. That Tribunal then made the decision to affirm the decision made.
Because the delegate had made a decision not to grant the First Respondent an XA visa, it meant that the decision affirmed was not to grant the applicant an XA visa, which was not the decision that either the delegate should have been deciding, nor the Administrative Appeals Tribunal reviewing.
When the First Respondent, that is, the visa applicant, took the matter to the Federal Circuit Court, the Minister, having realised the mistake, submitted that the matter ought be remitted back to the Administrative Appeals Tribunal. Jarrett J was the Judge and, the order of His Honour, which is at page 140 of the court book, reads that:
“By consent, it is declared that the applicant’s application for a protection XA visa is, by operation of regulation 2.08F of the Migration Regulations 1994, taken to be, and to have always been, an application for a temporary protection (class XD) visa.”
The writ of certiorari and mandamus was issued and the notation read this:
“The first respondent concedes that the decision of the second respondent is affected by jurisdictional error in that the application for a protection XA class visa was, by operation of section 45AA of the Migration Act, and regulation 2.08F of the Migration Regulations 1994, to be treated as an application for temporary protection (class XD) visa. A failure to consider the application against the criteria applicable to a temporary protection (class XD) visa amounted to jurisdictional error. In reconsidering and determining the matter according to law, the second respondent is to exercise the powers under section 415, subsection (2) of the Act, namely, either section 415(2)(c) or section 415(2)(d) or section 415(2)(e) of the Act.”
Now, the fact that His Honour had made that decision, notwithstanding that it was by consent, meant that the Tribunal was bound by what His Honour had actually said.
When the matter came back before the Tribunal, the Tribunal made a decision which is found at page 9 of the court book. The Tribunal came to the conclusion they had no jurisdiction in relation to the application of a class XD visa, as “no part 7 reviewable decision” had been made on that application at the time the review application was lodged.
The reasoning of the Tribunal is the same sort of reasoning that Mr Boccabella has submitted to the Court. The submission is that for there to be a review under Part 7 of the Act by the Administrative Appeals Tribunal, it must requested by someone who is the subject of a primary decision. A primary decision, it is submitted, comes about when the application before the delegate is considered and decided upon.
The application before the delegate may have started out as an XA class protection visa application, but on 16 December, it changed and it is now, and is to be considered always as having been, an application for an XD protection visa. As the delegate made a decision in relation to an XA protection visa, it was reasoned that there had not been a decision made in regards to the XD visa. Therefore, it is submitted by Mr Boccabella, the Tribunal is correct; that is, it does not have jurisdiction to look at the matter.
Mr Boccabella submits that the matter must go back to the delegate for the delegate to decide on the merits as to whether the applicant has met all of the criteria that are to be considered for an XD visa. Until that is done, then the Minister has not made any decision, and so therefore the matter cannot be at the AAT, let alone at this Court.
There is little doubt that the “utterances”, and I use that word advisedly at this point, of the delegate on 17 December 2014 were wrong. It is whether those “utterances” amount to a decision. Mr Boccabella argues that they were not a decision; they were just simply a piece of paper that means absolutely nothing because the application for an XD visa was not considered. The Minister argues that it was a decision; it was just a decision that was wrong.
There has been quite a deal of argument as to what should be the proper interpretation. To my mind, s.69 of the Act really spells the matter out.
“69 Effect of compliance or non‑compliance
(1) Non‑compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.
(2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it”
To my mind, that sums up the matter. Mr Boccabella had submitted that s.69 does not apply to the current situation but, nonetheless, that the matter can be referred to the AAT so the AAT can set aside the decision only. But if s.69 cannot be applied to this set of circumstances, the matter cannot even get before the Administrative Appeals Tribunal to be set aside in the first place.
Mr Boccabella has referred to High Court authority to illustrate that definitions of “decision” can be very wide indeed. He submitted that there was authority that the “utterances” of the delegate of 17 December 2014 could be seen as a “decision” simply for the purpose of getting before the Administrative Appeals Tribunal to have the “decision” set aside, but then to categorise that same “decision” as not a decision at all, which means it would have to be remitted back. As attractive as that argument may seem to Mr Boccabella, it is not an attractive argument to me.
In my view, the power to have this matter before the Administrative Appeals Tribunal must come from the Migration Act 1958 (Cth). There is no common law provision to get before the Administrative Appeals Tribunal.
Section 69, as I have just read into the record, is the power by which a decision, even one that is so obviously full of jurisdictional error, is able to be put before the AAT when read in conjunction with section 412. That section talks about “application for review only made by the non-citizen who is the subject of the primary decision”. It seems to me that this is the only way the present matter could get before the AAT in the first place.
Once it is before the AAT, then the AAT “steps into the shoes” of the decision-maker and has the power under s.415(1) to “exercise all the powers and discretions that are conferred by this Act on the person who made the decision”, and allows the Tribunal to “affirm the decision; vary the decision; remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; set the decision aside and substitute a new decision; or, to exercise a power in relation to the dismissal or reinstatement of an application”.
What Mr Boccabella, in my view, really is submitting is that the matter should have been remitted for re-consideration in accordance with the powers of the AAT conferred by s.415(2)(c).
Even though Mr Boccabella is seeking to affirm the decision of the AAT, it seems to me that there is no other mechanism by which the matter would, in any way, get back to the delegate to make a decision unless the “utterances” of the delegate on 17 December 2014 were a decision pursuant to s.69, which is then looked at pursuant to s.412, and the power of the Tribunal exercised under s.415(2)(c) and remitted back that way.
And, in fact, that is exactly what Judge Jarrett had ordered the Tribunal to consider as one of their options; to remit the matter for reconsideration; or to set the decision aside and substitute a new decision; or to exercise a power under s.426A in relation to the dismissal or reinstatement of an application. The Tribunal did not do any of those things ordered by His Honour.
In my view, the Tribunal misunderstood what it was there to do. Notwithstanding that a decision had been made that was clearly wrong, the Tribunal had the matter before it.
It was, pursuant to the regulations, an application for an XD class protection visa. The Tribunal should then be the one to exercise the power and make the decision, notwithstanding that it was then effectively becoming the first decision-maker rather than the reviewer.
But that is because of the unfortunate circumstances of this matter. The power to do so is certainly there in the legislation, and the Tribunal ought to have exercised it.
I accept the submission of Ms Wheatley that this decision on 17 December 2014 was, notwithstanding that it was wrong, still a decision, and the power under s.69 then applied.
I accept the submission that once the First Respondent invoked the power of the AAT to review the decision, the delegate then became functus officio, and the matter was then for the Tribunal to conduct the review anew, and in effect, look at the merits application de novo.
The Tribunal did not do what it was supposed to do, and therefore it has committed a jurisdictional error.
Having fallen into jurisdictional error, it seems to me that what I ought then do now is to make similar orders to that of His Honour Judge Jarrett, but to inform the Tribunal that it does have before it, an application for an XD class visa, and it is to decide on the merits, whether that visa ought be granted or not. That is the power of the Tribunal and the Tribunal must exercise it.
Having regard to the fact that this was not a question of the Minister and Mr Boccabella’s client being ad idem that there ought be a decision in effect remitting the matter back to the AAT, Mr Boccabella’s very firm submissions were that the Court should do absolutely nothing with the matter.
It seems to me as though it is one where there has been a clear decision in favour of the Minister and the Minister is entitled to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 7 December 2017
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