NJCT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 524
•29 March 2023
NJCT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 524 (29 March 2023)
Division:GENERAL DIVISION
File Number: 2022/6917
Re:NJCT
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:29 March 2023
Place:Melbourne
The decision of the Tribunal is to reinstate the applicant’s application for review brought on 25 August 2022.
..........................[sgd]..............................................
Deputy President Britten-Jones
Catchwords
PRACTICE AND PROCEDURE – application for reinstatement – both parties consent -application for review withdrawn by applicant – reinstatement application lodged by respondent – whether the respondent is ‘a party to the proceeding’ who may apply to the Tribunal for reinstatement for the purposes of section 42A(8) of the Administrative Appeals Tribunal Act 1975 – consideration of how the applicant found himself bound by a deemed dismissal – consideration of whether any useful purpose could be served by reinstating the application – reinstatement granted under s 42A(9)
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Tribunals Amalgamation Act 2015 (Cth)
Cases
De Simone and Commissioner of Taxation [2017] AATA 1005
Davies v Pagett (1986) 10 FCR 226
Evans v Bartlam [1937] AC 473
Kabue and Minister for Home Affairs [2019] AATA 3753
Re Sobczuk and Commissioner of Taxation [2004] AATA 655
Re Zablotsky and Secretary, Department of Social Services [2019] AATA 4367Secondary Materials
Dennis Pearce, Administrative Appeals Tribunal (Lexis Nexis Australia, 5th ed, 2020)
REASONS FOR DECISION
Deputy President Britten-Jones
29 March 2023
INTRODUCTION
This is an application for reinstatement brought by the Respondent on 27 February 2023 under s 42A(8) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)[1] following from the Applicant’s own reinstatement request made on 24 February 2023.
[1] All references to legislation are to the AAT Act unless otherwise stated.
The facts are not in dispute. I will refer to them in more detail later in these reasons, but it is sufficient to note at this stage that the Applicant withdrew his application for review to the Tribunal and now wants to reinstate his application for review because otherwise he will face deportation as an illegal alien. The Respondent agrees that his application should be reinstated and has brought this application to achieve the outcome sought by the Applicant.
LEGISLATION
Reinstatement of an application is governed by s 42A which provides relevantly:
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.
(1AA) If a proceeding is in the Social Services and Child Support Division and is not a child support first review, the person may notify the Tribunal orally of the withdrawal or discontinuance. The person who receives the notification must make a written record of the day of receipt.
(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.
…
Reinstatement of application
(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 (11), apply to the Tribunal for reinstatement of the application.
(8A) If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.
(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 made within the period referred to in subsection (11) or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(11) For the purposes of subsections (8), (8A) and (10), the period is:
(a) 28 days after the party receives notification that the application has been dismissed, unless paragraph (b) applies; or
(b) if the party requests an extension—such longer period as the Tribunal, in special circumstances, allows.
PRELIMINARY QUESTION AS TO WHETHER A RESPONDENT MAY SEEK REINSTATEMENT
The preliminary question to be determined is whether s 42A(8) allows an application for reinstatement to be made by the Respondent. Section 42A(8) provides:
(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 (11), apply to the Tribunal for reinstatement of the application.
The parties in this case agree in relation to the following two elements of s 42A(8) that:
(a)the Tribunal is taken to have dismissed the application under sub-s (1B); and
(b)the application for reinstatement has been made within the required period.
The only issue arising under s 42A(8) is whether the Respondent is “a party to the proceeding (other than the applicant)”. On any plain reading of the provision the Respondent is a party to the proceeding. Further, the Respondent is not “the applicant”. It follows that the Respondent is entitled to make the application for reinstatement.
If there was any doubt about this, the doubt is dismissed because this very issue has been thoroughly considered by Senior Member Puplick in Re Zablotsky and Secretary, Department of Social Services[2] (Zablotsky). In that matter, the respondent sought to make an application for reinstatement under s 42A(8). The Senior Member noted that it was the first such application made under s 42A(8) since its commencement in its amended form on 1 July 2015 following assent to the Tribunals Amalgamation Act 2015 (Cth). After a very thorough consideration of the text, context and purpose of s 42A(8), the Senior Member concluded:
[94] As a result of the latest amendments to the Act, the current wording refers to “a party” to proceedings. This must clearly encompass the Commonwealth, especially in the event where the Commonwealth is the only other party to proceedings.[3]
[2] [2019] AATA 4367.
[3] Ibid.
I respectfully agree with Senior Member Puplick in Zablotsky. I refer to and adopt his analysis and statutory interpretation of s 42A(8).
THE DISCRETION TO REINSTATE
The Tribunal has a discretionary power to reinstate an application under s 42A(9) which provides:
(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.
Section 42A(9) compliments s 42A(8).[4] The application which may be reinstated under s 42A(9) includes an application referred to in s 42A(8), which is taken to have been dismissed by the Tribunal under s 42A(1B) and which in turn includes an application that has been withdrawn by notification to the Tribunal in accordance with s 42A(1A). The effect of this legislative scheme applied in this case is that the Tribunal has a discretion to reinstate an application for review which the Applicant has withdrawn, but only if the Respondent applies for the reinstatement. I note that s 42A(10) is not so limited and gives a discretion to the Tribunal on the application of any party to the proceeding to reinstate, but only if it appears to the Tribunal that an application has been dismissed in error. It was not suggested by either party in this case that the dismissal deemed by operation of s 42A(1B) was in error. Therefore, s 42A(10) is not applicable.
[4] De Simone and Commissioner of Taxation [2017] AATA 1005.
Section 42A(9) provides that the Tribunal may reinstate the application “[i]f it considers appropriate to do so”. How to exercise the discretion in s 42A(9) will be informed by the nature of the circumstances which precede the dismissal. For example, the application may have been dismissed due to some form of default by an applicant such as a failure to appear or to carry out a necessary step in the proceedings. The approach taken by the Tribunal in relation to reinstatement of an application dismissed for failure to appear has been to adopt the approach taken in applications for an extension of time or in applications for an order setting aside a judgment against a party for failure to take a step in a proceeding.[5] However, it is inappropriate to lay down rigid rules to govern the exercise of the discretion because those preceding circumstances vary so much.[6]
[5] See Dennis Pearce, Administrative Appeals Tribunal (Lexis Nexis Australia, 5th ed, 2020) 15.9.
[6] Davies v Pagett (1986) 10 FCR 226 at 231 – comments made in reference to an application to set aside a judgment for failure to take a step in a proceeding.
In Evans v Bartlam [1937] AC 473 (Evans) the House of Lords considered a discretionary power to set aside a default judgment. Lord Atkins said at 480:
…The discretion is in terms unconditional. The Courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that where the judgment was obtained regularly there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence. It was suggested in argument that there is another rule that the applicant must satisfy the Court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the Court will have regard in exercising its discretion. If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficacy. The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.
But in any case in my opinion the Court does not, and I doubt whether it can, lay down rigid rules which deprive it of jurisdiction. Even the first rule as to affidavit of merits could, in no doubt rare but appropriate cases, be departed from. The proposed second rule does not in my opinion exist…
Lord Russell agreed and said at 482 that:
… no judge could, in exercising the discretion conferred on him by the rule, fail to consider both (a) whether any useful purpose could be served by setting aside the judgment, and obviously no useful purpose would be served if there were no possible defence to the action, and (b) how it came about that the applicant found himself bound by a judgment regularly obtained, to which he could have some serious defence… [7]
[7] Evans v Bartlam [1937] AC 473.
CONSIDERATION
I must now determine whether the Tribunal should reinstate the application by exercising the discretion given by s 42A(9).
Both parties have provided written submissions requesting that the Tribunal grant the application of the Respondent for reinstatement of the application for review. The Applicant set out the background facts which led to the Applicant withdrawing his application for review as follows:
[1] … NJCT (the Applicant), sought review of a decision of a delegate of the Respondent made on 22 August 2022 to refuse to grant him a Protection (subclass 866) visa (Protection visa) because they were not satisfied that he met s36(1C) of the Migration Act 1958 (Cth) (the Act). The Delegate was satisfied that the Applicant, having been convicted by a final judgment of a ‘particularly serious crime’, was a ‘danger to the Australian community’.
[2] Following the decision in Pearson v Minister for Home Affairs [2022] FCAFC 203 and a request from the lawyers for the Respondent seeking instructions as to whether the Applicant wished to withdraw from the Administrative Appeals Tribunal (the Tribunal) proceedings, on the basis of their advice that the Applicant held a Partner (Subclass 100) visa and was released from immigration detention, the Applicant withdrew the Protection visa review application. Following withdrawal, the Tribunal dismissed the application on 1 February 2023.
[3] Following the passage of the Migration Amendment (Aggregate Sentences) Act 2023, the Applicant’s Partner (Subclass 100) visa cancellation was validated, and he was again detained.
It was the Applicant who first requested the Tribunal to reinstate the application, but both parties recognised that the Tribunal had no jurisdiction to reinstate at the request of the Applicant. Following correspondence between the parties, the Respondent made this application within the 28 day period prescribed in s 42A(11).
The Respondent made contentions as follows:
[9] On 27 February 2023, pursuant to s42A(8) of the AAT Act, the Respondent, being a party to the proceeding other than the Applicant, applied for the Tribunal to reinstate Applicant's application.
[10] The Respondent notes the application was made within the period referred to in s42A(11)(a) of the AAT Act, being the period from 1 February to 1 March 2023.
[11] Pursuant to s42A(9) of the AAT Act, the Respondent submits that it is appropriate for the Tribunal to reinstate the application in circumstances where:
(a) the parties are agreed that the application should be reinstated;
(b) the Respondent considers that the prospects of the Applicant's application for reinstatement are limited, having regard to the effect of s42A(8) of the AAT Act;
(c) the Respondent does not consider that the application was dismissed in error, having regard to s42A(10) of the AAT Act;
(d) having regard to the effect of s48A(1) of the Migration Act, unless the Minister determines otherwise under s48B of the Migration Act, the Applicant will otherwise be prevented from applying for a PV while in the migration zone (the refusal of which was subject to review in the Tribunal).
The Tribunal has a broad discretion to reinstate under s 42A(9). In this case, noting that both parties consent to the reinstatement, I would exercise my discretion by taking the approach (in reverse order) of Lord Russell in Evans, namely to consider:
(a)how it came about that the Applicant found himself bound by a deemed dismissal; and
(b)whether any useful purpose could be served by reinstating the application for review, noting that no useful purpose would be served if the application for review had no possible prospects of success.
As to how the Applicant found himself bound by a deemed dismissal, I note that the Applicant withdrew his application in relation to the Protection (Subclass 866) visa (protection visa) after he was released from detention, having been informed by his solicitor that his Partner (Subclass 100) visa (partner visa) was reinstated. It was the Respondent’s lawyers who, quite appropriately, invited the Applicant to withdraw given that he held a valid partner visa. The Applicant agreed and provided written advice to the Tribunal by letter dated 27 January 2023 that his application to review was withdrawn in accordance with s 42A(1A). Pursuant to s 42A(1B), if notification is given in accordance with s 42A(1A), the Tribunal is taken to have dismissed the application without proceeding to review the decision.
The Applicant withdrew his application for review in relation to the protection visa because there was simply no need for him to proceed with that application in the circumstances that he then held a valid partner visa and was no longer in detention. Unfortunately for the Applicant, the relevant legislation was amended with the effect that the cancellation of his partner visa was validated. The Applicant was informed that his partner visa was cancelled, and he was returned to detention. The Applicant found himself in the position of having no partner visa, and not being able to pursue his application for review in relation to the protection visa. Things were made worse for the Applicant because of the effect of s 48A(1) of the Migration Act1958 (Cth) (Migration Act), which prevents the Applicant from making another protection visa application while in the migration zone unless the Minister determines otherwise under s 48B of the Migration Act.
As to the second aspect of Lord Russell’s approach, there is clearly a useful purpose to reinstate the application because both parties agree and there is no suggestion that the application for review has no possible prospects of success. This case can be distinguished from Re Sobczuk and Commissioner of Taxation,[8] where it was found on a reinstatement application that it would be a waste of time and resources to reinstate the proceedings because the applicant had no available remedy to him.
[8] [2004] AATA 655.
I mention for completeness that a similar situation to this case arose in Kabue and Minister for Home Affairs[9] (Kabue), in which an applicant who had sought review of a non-revocation decision under s 501CA(4) of the Migration Act had voluntarily withdrawn their application under s 42A(1A) of the AAT Act and had later had a change of heart and applied for reinstatement under s 42A(8). The Senior Member found that s 42A(8) was not available to the applicant because it was confined to “a party to the proceeding (other than the applicant)”. The applicant in Kabue sought reinstatement alternatively under s 42A(10), but that was refused because the application had not been dismissed in error. Contrary to what the Senior Member appears to say at [21] and [22] in Kabue, it is my view that if the respondent (instead of the applicant) in Kabue had brought the application for reinstatement under s 42A(8), then the discretion to reinstate would have been enlivened.
[9] [2019] AATA 3753.
DECISION
I consider that it is appropriate to reinstate the application in this case to enable the Applicant to proceed with his application for review lodged on 25 August 2022, for a review of the Respondent’s decision dated 22 August 2022 to refuse to grant him a protection visa.
1. I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
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Associate
Date of Decision: 29 March 2023 Hearing:
Solicitor for the Applicant
Hearing on the papers
Carina Ford Immigration Lawyers
Solicitor for the Respondent Clayton Utz
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