SZVXH v Minister for Immigration

Link copied
Case Copied 48 min read

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVXH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 458

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

EXTENSION OF TIME – Whether time should be extended to applicant to file an application for judicial review – whether the Administrative Appeals Tribunal erred in finding that it was functus officio at the time it received a request from the applicant at 1:38pm on 19 September 2012 to re-open his case and provide an opportunity to attend a further hearing – whether the Administrative Appeal Tribunal’s decision made on 19 September 2012 at 1:38pm was beyond recall at the time it received the applicant’s request – whether the Administrative Appeals Tribunal’s decision dated 17 September 2012 to proceed on the review without taking further action to enable or allow the applicant to appear before it after the applicant failed to arrive at the hearing on the third occasion was legally unreasonably – whether the Tribunal properly exercised its discretion under section 426A of the Migration Act 1958 (Cth) to proceed on the review without taking any further action to allow or enable the applicant to appear before it after the applicant failed to appear at the hearing – whether the applicant’s explanation for the delay of 26 months is satisfactory – extension of time refused to seek judicial review of the decision of the Administrative Appeals Tribunal dated 17 September 2012.
Legislation:
Migration Act 1958 (Cth), ss.414, 415, 425, 426A, 430, 430A, 477
Migration Regulations 1994 (Cth), reg.4.35D
Cases cited:
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Commonwealth; Ex Parte Marks (2000) 177 ALR 491
Minister for Immigration & Citizenship v SZQOY (2012) 206 FCR 25
Minister for Immigration & Citizenship v SZRNY (2013) 214 FCR 374
Semunigus v Minister for Immigration an Multicultural Affairs (2000) 96 FCR 533
Batagol v Federal Commissioner of Taxation (1963) 109 CLR 243
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640
Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572
SZHDC v Minister for Immigration and Multicultural Affairs [2006] FCA 600
Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51
Applicant: SZVXH
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 3611 of 2014
Judgment of: Judge Emmett
Hearing date: 28 July 2016
Date of Last Submission: 20 December 2016
Delivered at: Sydney
Delivered on: 14 March 2017

REPRESENTATION

Counsel for Applicant: Mr Hamish Bevan (Pro Bono)
Counsel for the First Respondent: Mr Bora Kaplan
Solicitors for the First Respondent: Australian Government Solicitor
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3611 of 2014

SZVXH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read SZVXH v Minister for Immigration and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2017] FCCA 458
Decision Date

CaseChat Overview and Summary

The applicant, SZVXH, sought an extension of time to file an application for judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The core dispute concerned whether the AAT had erred in finding itself *functus officio* when it received the applicant's request to re-open his case and provide a further hearing. The applicant had failed to attend a hearing on three separate occasions. The court was required to determine whether the AAT's decision, made on 19 September 2012, was beyond recall at the time it received the applicant's request, and whether the AAT had unreasonably exercised its discretion under section 426A of the *Migration Act 1958* (Cth) by proceeding without allowing the applicant to appear. The court also considered whether the applicant's explanation for a 26-month delay in seeking judicial review was satisfactory.

The court's reasoning focused on the principle that a tribunal's decision is not beyond recall until an "overt act" has been taken that places the decision beyond the tribunal's province and control. Drawing on previous authority, the court noted that this typically involves the oral pronouncement or other notification of the decision. The court found that while an electronic communication was sent to the Department at 1:00 pm on 19 September 2012, there was insufficient evidence to establish its purpose or that it constituted an act placing the decision beyond recall. Specifically, the court lacked evidence regarding the tribunal's internal processes, the relationship with the Department concerning electronic communications, and who had access to the information recorded in the ICSE system. Without this evidence, the court was not satisfied that the tribunal's decision was beyond recall at that time, as the written statement of reasons remained within the tribunal's control.

Consequently, the court found that the applicant's request to re-open the case was made before the AAT's decision was beyond recall. The court therefore granted the extension of time to seek judicial review of the AAT's decision dated 17 September 2012.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Logan J found that the analysis of the provisions considered in Batagol was similar to the provisions of the Act relating to the RRT’s core function of review. Logan J found that it therefore yielded a similar type of conclusion (see SZQOY at [41]). In SZQOY at [41] Logan J stated that:41. …Nothing done within the RRT’s office can amount to more than steps which will form part of the review of the decision if, but only if, they lead to and are followed by the oral pronouncing or other notification of the decision of the particular member constituting the RRT for the purpose of that review.”(Emphasis added). Logan J referred to the previous legislative procedure which required the RRT’s decision to be “handed down”. That process involved the applicant and the Secretary being invited to be present at a time when the Member constituting the RRT announced the decision orally. A tribunal may still take that course. Logan J found that it is in that context that s.430(2) of the Act does no more than give precision to what is to be the date of the decision when the RRT avails itself of that alternative. I accept that, based on SZQOY, it was necessary for the Tribunal to take some “overt act” that placed its decision beyond the province and control of the Tribunal such that its decision was beyond recall. Whilst the electronic communication was to the Department at 1:00pm and not intramural the RRT, there is no evidence to explain what was the purpose of that step being taken. Nor was it suggested that it was pursuant to any legislative obligation. The communication and response appear to have been electronically generated. There is no evidence that the ICSE system was available to the applicant, or indeed, any evidence as to who were the persons that could access that information. Why would one assume that what appears to be an automatically generated electronic entry, on what may be internal Department information, was available to any person whose access to that information would place the Tribunal’s decision beyond recall. There was no evidence of the purpose of that communication. In the course of submissions, I asked counsel for the first respondent what happens to a statement of reasons when a Tribunal Member settles the reasons and dates them. Counsel responded that his understanding of the mechanics of the process was very poor and was not the subject of evidence. In an endeavour to answer my question, counsel responded that his poor understanding of the mechanics of the workings of the Tribunal is that the decision record and statement of reasons is provided to the Tribunal Registry and “certain things then happen’’. Counsel then said no more than that it seemed that an electronic version of the decision is sent to the Department. In the absence of evidence relating to a) the Tribunal processes and the relationship with the Department in relation to automatic electronic communications between them; b) the purpose for such communications; and, c) the persons with access, I am not satisfied that the Tribunal’s decision was beyond recall at 1:00pm on 19 September 2012. The Tribunal’s written statement was still within its province and control and may not have been the subject of any external communication. It was only the outcome of the decision that was communicated to the Department. As stated above, there is no evidence as to what that means and who may have access to the ICSE system, which the parties agree is where the outcome of the decision had been recorded.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.