Omar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 3753
•19 June 2020
Omar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3753 (19 June 2020)
Division:GENERAL DIVISION
File Number: 2020/3292
Re:Abdishakur Omar
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:19 June 2020
Place:Adelaide
The within application is dismissed pursuant to s42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
...........................[sgd].............................................
Senior Member Theodore Tavoularis
CATCHWORDS
INTERLOCUTORY DECISION – Jurisdiction question – whether the Tribunal has jurisdiction to review decision – where Tribunal found it did not have jurisdiction to review decision – where application dismissed pursuant to s42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)CASES
CKQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 927
Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324
Hopper and the Egg and Egg Pulp Marketing Board (Victoria) (1939) 61 CLR 665
Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355
Ridley and Whipp (1916) 22 CLR 381
Russell v Minister for Home Affairs [2018] FCA 2102
Russell v Minister for Home Affairs [2019] FCAFC 110
Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64
REASONS FOR DECISION
Senior Member Theodore Tavoularis
19 June 2020
INTRODUCTION
The instant decision arises from an interlocutory hearing held on 10 June 2020 relating to the Tribunal’s jurisdiction to further entertain this application. The dispute about jurisdiction derives from an error made by the Applicant in completion of the subject application that was filed with this Tribunal on 29 May 2020. The sequence of events is best understood by reference to the following timeline.
TIMELINE
The following events have transpired on each of the stipulated dates:
·22 March 2019: the Minister’s delegate cancelled the Applicant’s Class BF Transitional (Permanent) visa pursuant to s501(3A) of the Migration Act 1958 (Cth) (“the Act”) (“the cancellation decision”);
·9 April 2019: the Applicant sought revocation of the cancellation decision;
·15 April 2020: a different delegate of the Minister decided (“the non-revocation decision”), pursuant to s501CA(4) of the Act not to revoke the cancellation decision;
·25 May 2020: the Applicant duly acknowledged receipt of the non-revocation decision by way of a signed acknowledgment;
·29 May 2020: the instant application was accepted for filing by the Tribunal and allocated file number 2020/3292.
THE PROBLEM
Stated simply, the Applicant (via application numbered 2020/3292) has applied for review of the wrong decision. It is plain from the face of his application that he seeks review of the cancellation decision and not the non-revocation decision. That error raises several issues which should be addressed.
1: IS THERE CERTAINTY THAT THE INSTANT APPLICATION SEEKS REVIEW OF THE WRONG DECISION?
The Respondent propounds a number of reasons in favour of a finding that the wrong decision is now sought to be reviewed. The Respondent contends:
·The application records the date of the cancellation decision in the section requiring insertion of the “date the decision was made”;
·The application records the departmental cipher of the delegate who made the cancellation decision;
·The application only attaches the cancellation decision;
·The application does not attach and makes no direct or indirect reference to the non-revocation decision; and
·The application is not accompanied by any of the suite of documents nominated in s500(6C) of the Act, despite the Applicant being notified of this requirement pursuant to s501G(1)(f)(v) of the Act.
For these reasons, the Respondent contends the Tribunal does not have jurisdiction to further entertain the instant application because it seeks review of the cancellation decision instead of the non-revocation decision. The Respondent further contends that the instant application is not reviewable by the Tribunal and should be dismissed for want of jurisdiction pursuant to s42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).
As against these contentions, there are the following likelihoods or realities:
·The Applicant, although self-represented throughout the history of this matter, has clearly made himself familiar with deadlines stipulated to him for the taking of necessary steps;
·He successfully appealed the review process for the cancellation decision by meeting the requirements of (inter alia) Regulation 2.52 of the Migration Regulations 1994 (Cth) and ensuring this information was duly received by the Respondent within 28 days of his receipt of the relevant notice; and
·He has obviously comprehended the requirement – communicated to him contemporaneously with his receipt of the non-revocation decision – to file any application for review of that decision within nine days of receipt of that decision.
Some explanations for the current state of the instant application could be: (1) the Applicant regarded the cancellation decision as the “progenitor” decision and, accordingly, inadvertently nominated that particular decision for review via the instant application; (2) he thought the cancellation decision somehow “encapsulated” or compartmentalised the non-revocation decision such that it (the cancellation decision) was the only decision ever capable of ongoing review. Inadvertent and unfortunate though these errors and/or misconceptions may be, it does not displace the weight of the abovementioned dot-point contentions made by the Respondent.
2: CAN THE INSTANT APPLICATION BE AMENDED OR TREATED BY THE PARTIES SUCH THAT IT WOULD SERVE AS A MECHANISM FOR REVIEW OF THE NON-REVOCATION DECISION?
Whether or not the Tribunal’s jurisdiction has been properly invoked is a matter of objective determination.[1] Accordingly, the subjective intention of the Applicant – in terms of how he now wants the instant application to act as a mechanism for review of the non-revocation decision – cannot determinatively invoke the lawful exercise of the Tribunal’s jurisdiction.
[1] Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64 at [103].
There are two fatally stark realities confronting the Applicant: (1) the ancillary document(s) he received with the non-revocation decision made it plain that his further rights of review were predicated on review of that decision (i.e. the non-revocation decision) and (2) any application for review of that (non-revocation decision) must be made “in writing” pursuant to s29(1)(a)(i) of the AAT Act so as to properly invoke this Tribunal’s jurisdiction.
While there is authority for the proposition that the “in writing” requirements of s29(1)(a)(i)[2] have been met by lodgement of a document not strictly conforming to the Tribunal’s standard application form,[3] there is a dearth of authority endorsing a “deeming” that a given application for review of one decision can be transformed into a review of a different decision. In a similar vein, it would be unsafe for this Tribunal – either via its Registry processes or by Order – to seek to cure the relevant defect by allowing unilateral amendment of the instant application by the Applicant.
[2] of the AAT Act.
[3] See CKQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 927.
3: CAN THE INSTANT APPLICATION BE RECONFIGURED WITH THE CONSENT OF THE PARTIES?
Several factors militate against any curing of the defect in this application on the basis of the parties consenting to its reconfiguration into an application dealing with review of the non-revocation decision. First, it is well-established that jurisdiction cannot be conferred on a decision-maker by the consent of the parties. In Ridley and Whipp (1916) 22 CLR 381, Griffith CJ held:
“The maxim that consent cannot give jurisdiction is sometimes misunderstood. Jurisdiction involves two distinct concepts: authority to deal with a person against his will, and authority to deal with the subject-matter. If a person who is not amenable without his consent to the coercive jurisdiction of a court voluntarily appears and submits to it, the court has jurisdiction to deal with the matter as against him, as in the well-known instance of an action against a foreign sovereign. But consent cannot give jurisdiction over subject-matter which is itself not within the cognizance of the court.”[4]
[4] At page 386.
In Hopper and the Egg and Egg Pulp Marketing Board (Victoria) (1939) 61 CLR 665, Starke J held:
“The jurisdiction of the court does not rest on the consent of the parties but upon the existence of some matter founding the jurisdiction of the court. This is well expressed by the Supreme Court of the United States in a recent decision, Texas v. Florida (6): “The novel character of the questions presented and the duty which rests upon this court to see to it that its power be confined within the limits prescribed by the Constitution make it incumbent upon us to inquire of our own motion whether the case is one within its jurisdiction.”
Accordingly I think this action should be dismissed for want of jurisdiction in this court.”[5]
[5] At page 677.
Second, any consent of the parties regarding reconfiguration of the application to substitute review of the cancellation decision in favour of the non-revocation decision does not displace the requirement that this Tribunal’s jurisdiction to entertain such an application must first be lawfully invoked. As mentioned earlier, the invoking of the Tribunal’s jurisdiction occurs via the lodgement of an application “in writing” pursuant to s29(1)(a)(i) of the AAT Act. There is no live application “in writing” before the Tribunal in respect of the non-revocation decision.
Third, it is well-established that the Tribunal does not have power to extend the time in which an applicant can permissibly apply for review of the non-revocation decision.[6] The deprivation of the Tribunal’s power to extend the time is the result of the operative effect of s500(6B) of the Act. Section 500(6B):
(i)Compels a person seeking review of a decision under s501CA(4) of the Act to lodge such application with the Tribunal “…within 9 days after the day on which the person was notified of the decision…”; and
(ii)Specifically disables the Tribunal’s capacity to extend time for lodgement of the subject application: “…subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the Application.”
[6] See Russell v. Minister for Home Affairs [2018] FCA 2102 at [12]; affirmed on appeal in Russell v. Minister for Home Affairs [2019] FCAFC 110.
Compliance with the mandatory nature of the requirements contained in s500(6B) of the Act cannot be displaced by the principle contained in Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 CLR 355. That is, what the Applicant has done has resulted in a failure to meet the legislative requirements necessary to invoke the Tribunal’s jurisdiction to review the non-revocation decision. That procedural failure is not capable of characterisation as being of no effect. An understanding of why this is the case can be taken from the decision of Heerey J in Fernando v. Minister for Immigration and Multicultural Affairs [2000] FCA 324:[7]
“31. In my opinion Blue Sky does not assist the appellant. On the contrary, [s500(6B) of the Act] clearly stipulate[s] that the making of an application within the prescribed time is an essential preliminary to the exercise of the [Tribunal’s] function. Moreover, this is not a case like Blue Sky or Murphy that is within the Normandin principle. This is not a case where individuals would suffer if invalidity were to flow from some default within the administration of a public authority that is entirely beyond the control of the individual. Here the individual, the applicant … is the person who has to perform the act stipulated by Parliament as an essential preliminary to the [Tribunal’s] jurisdiction.”[8]
[7] Note: I have paraphrased certain parts of His Honour’s comments such as to make the quoted passage more appropriate to the instant facts. The paraphrased portions appear in square brackets.
[8] At pages 415-416.
CONCLUSION AND DECISION
It should be noted that the circumstances in which the Applicant now finds himself are deeply unfortunate. At every stage of his efforts to preserve his visa status, he has correctly complied with legislative requirements incumbent upon him. He has made a single error involving the inadvertent nomination of the cancellation decision (instead of the non-revocation decision) as the decision sought to be reviewed via the instant application number 2020/3292. Given the legislative preclusions against (1) the amendment of the subject application to nominate the non-revocation decision for review; (2) the parties consenting to such an amendment of the application; and (3) the capacity of the Tribunal to extend the time for the filing of a fresh application for review of the non-revocation decision, the Applicant will unfortunately be deprived of an opportunity to have a merits review of the non-revocation decision.
It is, of course, open to the Applicant to file a fresh application seeking review of the non-revocation decision. Subsequent to the filing of that fresh application, a determination can be made about whether the jurisdiction of the Tribunal has been lawfully invoked. It is not possible to determine that particular issue in the context of the instant application numbered 2020/3292.
For immediate purposes, I find the Tribunal does not have jurisdiction to review the non-revocation decision, review of which is sought via the instant application numbered 2020/3292.
Accordingly, I dismiss the application numbered 2020/3292 pursuant to s42A(4) of the AAT Act.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
......................[sgd]..................................................
Associate
Dated: 19 June 2020
Date of hearing: 10 June 2020 Applicant: By telephone Solicitors for the Respondent: Mr Alex Chan
Associate, Sparke Helmore Lawyers
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