XLTK and Secretary, Department of Home Affairs (Migration)

[2019] AATA 194

XLTK and Secretary, Department of Home Affairs (Migration) [2019] AATA 194 (20 February 2019)

Division:GENERAL DIVISION

File Numbers:         2018/6456

Re:XLTK

APPLICANT

AndSecretary, Department of Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date of decision:               20 February 2019

Place:Melbourne

The Tribunal decides that it does not have jurisdiction to consider the application for review, and the application is dismissed.

[sgd]......................................................................

Deputy President S A Forgie

PRACTICE AND PROCEDURE – JURISDICTION – application for review of decision relating to request for access to documents – where no IC review application made and therefore no IC decision made – no jurisdiction to review decision of which review sought – application dismissed

PRACTICE AND PROCEDURE – JURISDICTION – application for review of decision relating to cancellation of Partner visa – where no provision in Migration Act 1958 for review of decision by Tribunal – no jurisdiction to review decision of which review sought – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975

Australian Security Intelligence Organisation Act 1979

Freedom of Information Act 1982

Migration Act 1958

Migration Regulations 1994

REASONS FOR DECISION

Deputy President S A Forgie

1. Although I have not been requested to do so, I have given the applicant in this matter a pseudonym for I need to refer to an adverse or qualified security assessment that the Australian Security Intelligence Organisation (ASIO) has made in respect of him.  He may wish to apply for an extension of time within which to apply for its review under the Australian Security Intelligence Organisation Act 1979 (ASIO Act). 

1. XLTK, who lives overseas, lodged an application for review of a decision but did not clearly describe the decision of which he sought review. His application was listed for hearing by telephone and he was sent a notice of that listing. When, at the time the hearing was listed, XLTK did not answer the telephone calls made to the number he had given the Tribunal, the member constituted to hear the application dismissed it under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act).  I reinstated his application at XLTK’s request but the Secretary of the Department of Home Affairs (Secretary) (Department) questioned the Tribunal’s jurisdiction to review a decision of which XLTK seemed to have sought review.  I have decided that there is some doubt about the decision to which his application related but I have considered the issue on the basis that he might be seeking review of a decision under the Freedom of Information Act 1982 (FOI Act) and/or review of the cancellation of his Partner (Migrant) (class BC) (Partner subclass 100) (Partner visa) in July 2017.

1. I have decided that the Tribunal does not have jurisdiction, be it described also as power or authority, to review either of those decisions. The decision that the Tribunal does have power to review is a decision by ASIO to make an adverse or qualified security assessment. The fact that the adverse or qualified security assessment was made is the basis on which XLTK’s Partner visa was cancelled under s 128 of the Migration Act 1958 (Migration Act) when a delegate of the Minister was satisfied that there was a ground for cancelling the visa under s 116, i.e. s 116(1)(g).

Application for extension of time

1. On 5 November 2018, XLTK applied for an extension of the time within which he could lodge an application for review of a decision that he had received on 21 September 2018.  The decision was also dated 21 September 2018 and had been made by an FOI Case Officer in the Department of Home Affairs (Department) in response to XLTK’s request for access under the FOI Act to documents held by the Department and relating to the cancellation of his Partner visa.  The FOI Case Officer had decided to grant access to some documents but had refused access to others on the basis that disclosure of the information in those documents would be contrary to the public interest under ss 47E and 47F.

2. XLTK said that his reason for applying to the Tribunal for an extension of time was that:

   “… when I first received the letter that my visa has been cancelled I was overseas and the house that I was living in was sold and the letter went to the wrong address and also I wasnt directed to the right email-address.  I would like another chance to get my decision reviewed.  thank you.”

Attached to his application were documents that he had received under the FOI Act and that set out the reason why his Partner visa had been cancelled. I come to that at [12]-[14] below.

1. XLTK subsequently wrote to the Tribunal and provided further documents.  He said that he wanted the Tribunal to review the decision as he wanted to be able to return to Australia where his family would have a better life and his wife would be able to return to the country of her birth and her homeland.

1. XLTK’s application for an extension of time was listed for hearing by telephone on 10 December 2018. Attempts were made to contact him by the Australian telephone number he had provided on his application but were unsuccessful. Further attempts made to contact him on overseas numbers his family provided also proved unsuccessful. As a result, the member hearing the application decided that XLTK had failed to appear at the hearing of the application and dismissed his application under s 42A(2) of the AAT Act.[1]

   [1] Section 42A(2) gives the Tribunal power to dismiss “an application for review of a decision”. An application for an extension of time within which to lodge an application for review of a decision does not come within that description. For the purposes of, among others, ss 42A(2) and (8), however, the reference to “an application for review of a decision” is to be read as including an application described in paragraphs (b), (c), (d), (e), (f) or (h) of the definition of “proceeding” in s 3(1) of the AAT Act: AAT Act; s 69BA.  Paragraph (f) includes a reference to “any other application to the Tribunal under this Act …”.  An application made under s 42A(8) for reinstatement is such an application and so too is an application for an extension of time within which to lodge an application. 

Application for reinstatement of application for an extension of time

1. When he received notice of that decision on 11 December 2018, XLTK wrote to the Tribunal asking that his application be reinstated.  The Secretary of the Department did not oppose the reinstatement and I reinstated the application on 8 January 2019.  In doing so, I relied on the power to do so under s 42A(8) of the AAT Act.   

Application to dismiss reinstated application on basis no jurisdiction to review decision(s)

1. At the same time, a submission was made on behalf of the Secretary that the Tribunal did not have power to review a decision made under s 128 of the Migration Act. The possibility that XLTK was seeking review of the decision to cancel his Partner visa is raised by the emails he has written since lodging his application for an extension of time. He made no reference to the decision that had been made under the FOI Act and that he had attached to his application. I listed the matter for a hearing to determine the Tribunal’s jurisdiction to review either or both of the decisions made under the FOI Act and the Migration Act. If neither could be reviewed, I would have to dismiss the application for an extension of time.

1. Notice of the hearing was sent by email to XLTK and calls were placed to his Australian number and then to his two overseas numbers.  The Australian number was answered by a family member who advised that XLTK lived overseas and provided two numbers the Tribunal had been given on an earlier occasion.  Calls were then placed to those two numbers but they were not answered by XLTK or by anybody else.

1. Hearings may be held by telephone and a person may be required to participate by telephone.[2] In XLTK’s situation, a hearing by telephone was the practical option as he is currently living overseas. When I could not make contact with him by telephone, it was open to me to dismiss his application under s 42A(2) of the AAT Act as had happened on the earlier occasion. It is also open to me to refuse his application for an extension of time on the basis that, even if I were to grant it, the Tribunal would not have power to review the decisions of which he seeks review. I have chosen the latter course as I think it preferable that I explain why XLTK’s application cannot succeed rather than dismissing it, in effect, for failure to answer a number of telephone calls. My reasons also explain why I have not agreed to hold a further hearing to consider the matter even though XLTK’s wife telephoned later in the day saying that she had not received a call from the Tribunal. She gave a telephone number, which was one of the numbers we had telephoned unsuccessfully. That was the same number that XLTK included on his email dated 1 February 2019 when he also asked for a further hearing.

   [2] AAT Act; s 33A

A.        Consideration of jurisdiction on basis decision made under FOI Act

1. If XLTK sought review of a decision made under the FOI Act, the Tribunal could not review it.  The reason why the Tribunal could not review it lies in the fact that it was a decision made by an FOI Case Officer.  It was the first decision made on XLTK’s request by an officer of the Department.  It is not a decision that has been reviewed by the Information Commissioner and he, or his delegate, has not made a decision under s 55K of the FOI Act on such a review.  The Information Commissioner has not decided under s 54W(1)(b) that the interests of the administration of the FOI Act make it desirable that the reviewable decision be considered by the Tribunal.  The reason why the Information Commissioner has not made either of those decisions follows from the fact that XLTK has not applied to him for review of the decision made by the FOI Case Officer.[3]  An IC review application in relation to a decision covered by subsection 54L(2) (access refusal decisions) must be made within 60 days after the day notice of the decision was given to him under section 26.[4]  XLTK could apply to the Information Commissioner under s 54T for an extension of that time but there is no evidence that he has done so and I do not have a decision reviewed by the Information Commissioner.

[3] FOI Act; ss 54L(1) and (2)(a) provide that an application may be made to the Information Commissioner for review of “an access refusal decision”.  The decision made by the FOI Case Officer was an “access refusal decision” i.e. “a decision giving access to a document but not giving, in accordance with the request, access to all documents to which the request relates”: FOI Act; s 53A(b).  An “IC reviewable decision” is a decision covered by, among others, s 54L(2) (access refusal decisions): FOI Act; s 54K(a). 

[4] FOI Act; s 54S(1)

1. The fact that it is not a decision made under either s 55K or s 55W means that the Tribunal cannot review the decision made by the FOI Case Officer.  This follows from the fact that s 57A(1) of the FOI Act provides that:

   “An application may be made to the Tribunal for review of the following decisions:

   (a)a decision of the Information Commissioner under section 55K on an IC review;

   (b)if the Information Commissioner makes a decision under paragraph 54W(b) (matters inappropriate for IC review) – the IC reviewable decision in relation to which the Information Commissioner makes the decision.

   Note 1:…

   Note 2:…”

1. The Tribunal only has power or authority to review a decision when an enactment, such as the FOI Act, provides that an application may be made to it.  It is not a tribunal having general authority to review any administrative decision made by a Department or agency.  This follows from s 25(1) of the AAT Act.[5]

   [5] AAT Act; s 25(1)

B. Consideration of jurisdiction on the basis decision made under Migration Act

1. I turn now to the decision that was made cancelling XLTK’s Partner visa.  If the Tribunal has the power or authority to review that decision, I must find an enactment that provides that a person may make an application for review of a decision of the type made in cancelling his Partner visa. 

1. XLTK was granted a Partner visa in 2012. He and his wife and their three children left Australia in 2015 and travelled to another country where he said that they cared for his sick mother and later for his father. When the family wanted to return to Australia towards the end of 2016, XLTK discovered that his visa had been cancelled some three months earlier. The decision to cancel his Partner visa was made under s 128 of the Migration Act on the basis that there was a ground for cancelling it under s 116 and that it was appropriate to cancel it in accordance with Subdivision F of Division 3 of Part 2 of the Migration Act. Satisfied of those two matters, the Minister or his delegate had the power under s 128 to cancel the visa so long as he was outside Australia and to do so without giving him notice.

1. Section 116 sets out several grounds on which the Minister may cancel a visa.  In this case, the delegate or the Minister decided that he or she was satisfied that a prescribed ground for cancelling a visa applied to the XLTK.  That was a ground set out in s 116(g).  “Prescribed” means prescribed by regulation.[6]  Regulation 2.43 of the Migration Regulations 1994 (Migration Regulations) sets out the prescribed grounds for the purposes of s 116(1)(g).  The prescribed ground of which the delegate or Minister was satisfied was set out in 2.43(1)(b) i.e. that he or she was satisfied that XLTK had been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act (adverse or qualified security assessment).[7] 

   [6] Migration Act; s 5(1)

   [7] Section 116(1) is qualified by ss 116(2) and (3) but those qualifications do not apply in this case.

1. There is no provision in the Migration Act that allows a person to make an application for review of a decision to cancel a visa under s 116(1)(g). Therefore, the Tribunal has no power to review that decision.

1. Section 54(1) of the ASIO Act provides that “An application may be made to the Tribunal for a review of an adverse or qualified security assessment.”  Although XLTK attached two documents that referred to the basis on which his visa had been cancelled, his application for an extension of time within which to lodge an application for review referred to a decision dated 21 September 2018.  That was the date of the decision under the FOI Act.  The reason for seeking the extension referred to the decision cancelling the visa and to the misdirection of the letter advising him of the cancellation.  That is a decision that is not reviewable. 

Conclusion

1. I do not think that I should be unduly rigid or technical in analysing the decision of which XLTK has sought review but it seems to me that he has made his application in relation to the FOI decision or the decision to cancel his Partner visa.  Each of those decisions was made by an officer of the Department as the Minister’s delegate if not by the Minister.  The Tribunal does not have jurisdiction to review either of them.  If XLTK took steps to have the decision under the FOI Act reviewed by the Information Commissioner, he could make a fresh application for review of the decision made on that review.

1. He has not applied for review of the adverse or qualified security assessment made by ASIO.  ASIO is an agency separate from the Department.  The adverse or qualified assessment is reviewable.[8]  It is referred to in the documents XLTK lodged with his application but it is not clear if he has received a copy of that security assessment.  If XLTK wishes to have it reviewed, he will need to lodge an application for its review in accordance with ss 29(1)(ca) and (cb) of the AAT Act.  If he is outside the time permitted under s 29 of the AAT Act, he will need to apply for an extension of time within which to lodge that application. 

   [8] ASIO Act; s 54(1)

1. For these reasons, I dismiss XLTK’s application for an extension of time within which to lodge an application for review of a decision.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

[sgd].......................................................................

Associate

Dated:  20 February 2019

Heard by telephone:	30 January 2019
Applicant:	Self-represented
Solicitor for the Respondent:	David Brown Australian Government Solicitor