FEDERAL COURT OF AUSTRALIA

SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175

MIGRATION  - Whether the Tribunal is bound to review a decision of a delegate of the Minister notwithstanding that the decision had already been reviewed by the Tribunal.

Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Applicants S134/2002 (2003) 211 CLR 441

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801

Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301

Migration Act 1958  (Cth), ss 48A(1), 48B(1), 50, 414, 412, 416

SZBWJ, SZBWK, SZBWL and SZBWM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 479 of 2008

MOORE J

21 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  To the extent that it is necessary, the time within which the applicants are to file their application for leave to appeal be extended until 9 April 2008.

2.                  To the extent that it is necessary, leave to appeal be granted.

3.                  The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a judgment of aFederal Magistrateof 21 February 2008: SZBWJ & Ors v Minister for Immigration and Citizenship & Anor [2008] FMCA 164.  The application before the Federal Magistrate was for judicial review of a decision of the Refugee Review Tribunal of 21 May 2007.  The Tribunal found that it had no jurisdiction to review a decision of the delegate of the Minister to refuse to grant a protection visa to the applicant, as it had already discharged its function under the Act.  The central issue in these proceedings is whether the Tribunal is bound to review a decision of a delegate if the application for review in the Tribunal was made within time, notwithstanding that the delegate's decision had already been reviewed by the Tribunal.

Background

2                     The applicants are citizens of Bangladesh and are a husband, wife and their two children.  Counsel for the applicants, Ms Younan, represents the first three applicants.  This may be because the first applicant is the litigation guardian of the fourth applicant who was born in Australia and was not originally included in the application to the Tribunal.

3                     The relevant background facts are as follows:

• The applicants, who claim to be citizens of Bangladesh, arrived in Australia on 24 September 1999. They lodged an application for protection visas on 5 November 1999.
• The first applicant claimed that he had a well-founded fear of persecution by reason of his membership of, and support for, the Bangladesh Nationalist Party.  The second and third applicants' claims were based on those of the first applicant.
• On 1 December 1999, the delegate refused to grant protection visas to the applicants, and a letter was sent to them that day notifying them of the decision. On 21 December 1999, the applicants lodged an application for review of the delegate's decision with the Tribunal.
• On 27 March 2002, the Tribunal affirmed the decision not to grant protection visas to the applicants.
• The applicants sought judicial review of the decision of the Tribunal in the Federal Magistrates Court. This application was dismissed: SZBWJ & Ors v Minister for Immigration [2005] FMCA 508.  The applicants appealed unsuccessfully to the Full Court of the Federal Court: SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13and subsequently sought special leave to appeal to the High Court. The application for special leave to appeal was refused by the High Court on 2 March 2007: SZBWJ v Minister for Immigration & Citizenship [2007] HCATrans 100.
• On 20 March 2007, the applicants lodged a second applicationfor review of the December 1999 decision of the delegate with the Tribunal. By letter dated 11 April 2007, the Tribunal informed the applicants that their application was "ineligible" as they had already sought review of the decision by the Tribunal and had been unsuccessful.  The letter invited the applicants to comment.
• On 18 May 2007, the Tribunal decided that it did not have jurisdiction to consider the applicants' second application for review. The Tribunal made the following significant findings:

(i) The letter of 1 December 1999 was inadequate as a notification of the delegate's decision to the applicants, as it did not comply with the requirement in s 66(2)(d)(ii) of the Migration Act 1958 (Cth) that the applicants be notified of the time within which an application for review might be made to the Tribunal.

(ii) The letter incorrectly stated the time limit as being 28 days from when the applicants were deemed to have received the letter; namely, seven days after the date of the letter (see reg. 5.03 of the Migration Regulations 1994 (Cth)). However, reg 5.03 had been held to be invalid insofar as it purported to operate in respect of the time limits imposed by reg 4.31 pursuant to s 412 of the Act in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77.

(iii) The consequence of the delegate's inadequate notification was that, as at the date of the second Tribunal's decision, time had not started to run for the purposes of the 28 day time limit. Accordingly, the applicants' second application for review was lodged within time.

·         Ultimately, the Tribunal decided that it did not have jurisdiction to consider the applicants' second application for review. The Tribunal found that although the applicants had not been validly notified of the delegate's decision (and as such, time had not started to run for the purposes of the time limit specified in s 412 of the Act), the Tribunal had, in accepting the first application and conducting a review of it on the merits, discharged its review functions in respect of the delegate's decision.

4                     In support of the application for leave to appeal in this Court, the applicants filed an affidavit and a draft notice of appeal.  The applicants contended the Tribunal erred in law in finding that it did not have jurisdiction to review the decision of the delegate made on 29 October 1999.  They contended the Tribunal has a statutory duty pursuant to s 414 of the Act to review the decision of the delegate where two requirements are satisfied.  The first is that the decision is an RRT reviewable decision, as defined in s 411.  The second is that the application is valid, that is, it is made in accordance with the requirements in s 412.

5                     They contended the Tribunal erred in finding that there is an additional limitation on the jurisdiction of the Tribunal under s 414, namely, that once the Tribunal has carried out its statutory duty to review the decision of the delegate, it has no jurisdiction to review the decision a second time.

6                     They also contended that, although the authorities (for example, Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301) suggest that the Tribunal was not able to reconsider or reopen a decision it had previously made, these authorities can be distinguished on the basis that in the present proceedings, the Tribunal is not being asked to reconsider or reopen a decision it had previously made. Rather, the applicants in the present proceedings are merely seeking the independent consideration by the Tribunal of a second application for review. 

CONSIDERATION

7                     The starting point in determining whether the Tribunal had jurisdiction to consider the applicants’ second application is s 414(1) of the Act which provides as follows:

 Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision, the Tribunal must review the decision.

Section 412(1) requires that an application for review by the Tribunal must:

·         be made in the approved form;

·         be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

·         be accompanied by the prescribed fee (there is no prescribed fee in the event the Tribunal affirms the delegates decision not to grant a protection visa).

8                     It appears to be common ground that the applicants' second application for review by the Tribunal met the requirements of s 412(1) of the Act.  Accordingly, on receipt of the valid application for a review (as the second application for review appeared to be), the Tribunal was, in the ordinary course, obliged to review the delegate's decision.  As the High Court said in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Applicants S134/2002 (2002) 211 CLR 441 (at [16]):

A valid application for review having been made, s 414(1) obliged the Tribunal to review the decision of the delegate of the Minister. For the purpose of that review, the Tribunal was empowered by s 415(1) to exercise all the powers and discretions conferred by the Act on the delegate.

However, as the Minister correctly points out, the analysis does not end with the terms of s 414.  Rather, the real issue becomes one of statutory interpretation, and in particular, whether the Act evinces the intention that once the Tribunal has reviewed the delegate's decision, (and has done so free of jurisdictional error) the Tribunal has no power to re-review or reconsider the delegate's decision.

9                     There is no general principle of administrative law that an administrative decision-maker possesses no power to remake or reconsider a decision once made. As Gleeson CJ said in Minister for Immigration and Multicultural Affairs v Bhardwaj  (2002) 209 CLR 597 at [5] – [6]:

There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent.  InRidge v Baldwin, Lord Reid said:

"I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid."

That general proposition must yield to the legislation under which a decision-maker is acting.  And much may depend upon the nature of the power that is being exercised and of the error that has been made.

10                  It is also true that s 33(1) of Acts Interpretation Act 1901 (Cth) provides that where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.  In my opinion, however, the Act does evince the necessary contrary intention, with the result that the Tribunal is not empowered to embark upon a review or make a second decision on review of the delegate's decision in circumstances where the Tribunal's original decision was not attended with jurisdictional error.

11                  That is apparent having regard to the way in which s 414(1) interacts with other relevant provisions of the Act, and in particular, ss 48A(1), 48B(1), 50 and 416.  Section 414(1) is set out earlier (at [15]), but it is convenient to set out, in full, the other provisions.

12                  Sections 48A(1), 48B(1) and 50 provide as follows:

48A: Non-citizen refused a protection visa may not make further application for protection visa

(1)        Subject to section 48B, a non‑citizen who, while in the migration zone, has made:

(a)       an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

(b)       applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

may not make a further application for a protection visa while in the migration zone.

...

48B: Minister may determine that section 48A does not apply to non-citizen

(1)        If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

            ...

50: Only new information to be considered in later protection visa applications

If a non‑citizen who has made:

(a)       an application for a protection visa, where the grant of the visa has been refused and the application has been finally determined; or

(b)       applications for protection visas, where the grants of the visas have been refused and the applications have been finally determined;

makes a further application for a protection visa, the Minister, in considering the further application:

(c)        is not required to reconsider any information considered in the earlier application or an earlier application; and

(d)       may have regard to, and take to be correct, any decision that the Minister made about or because of that information.

13                  Section 416 of the Act provides that only new information is to be considered in later applications for review by the Tribunal. As the section states:

416: Only new information to be considered in later applications for review  If a non‑citizen who has made:

(a)       an application for review of an RRT‑reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

(b)       applications for reviews of RRT‑reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;

makes a further application for review of an RRT‑reviewable decision, the Tribunal, in considering the further application:

(c)        is not required to consider any information considered in the earlier application or an earlier application; and

(d)       may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.

14                  The combined effect of ss 48A(1), 48B(1), 50, 414 and 416 in the circumstances of these proceedings is as follows.  Under s 414, the Tribunal was obliged to consider the applicants’ application for review. The Tribunal did so, and made a decision that was free of jurisdictional error.  Given that the Minister had not given approval under s 48B, the effect of s 48A was that the applicants were not permitted make a further application for a protection visa while they were in the migration zone.

15                  Assuming for that moment that the Minister had given approval under s 48B for the applicants to make a further application for a protection visa, in considering that application, the Minister (or his or her delegate) was, by virtue of s 50, only obliged to consider new information in relation that application. If the Minister made a decision, and the applicants sought review of that decision, the Tribunal, in reviewing the decision, was similarly obliged only to consider information that had not been previously put before it: s 416.

16                  In my view, a proper construction of the Act tells against a conclusion that the Tribunal is empowered to again review the delegate's decision in circumstances where the Tribunal's original decision was not attended with jurisdictional error. Treating the Tribunal as authorised to undertake a second review of the delegate's decision would be contrary to the statutory aim of providing a mechanism of review that is "fair, just, economical, informal and quick": see s 420(1) of the Act. It also apparent from the Act that it places a high value on certainty, evidenced by the prescription of "strict time limits, detailed provisions governing the conduct of review proceedings and precise requirements as to the way in which the Tribunal is to record its decision and the reasons for it and is to notify and publish its decisions": Minister for Immigration & Multicultural Affairs v Bhardwaj [2000] FCA 789 at [58].

17                  It is appropriate at this point to refer to the High Court's decision in Bhardwaj v Minister for Immigration(2002) 209 CLR 597.  In Bhardwaj, an error was made by the Tribunal that led to the hearing being made in the absence of the applicant and an adverse determination made. The ultimate issue for determination by the High Court was whether the Tribunal had the power to hold another hearing and a make a decision in favour of the applicant. The High Court, by majority, held that the Tribunal had power to hold another hearing and made a decision in favour of the applicant. As explained by Gaudron and Gummow JJ at [50], given that the first Tribunal's decision was attended with jurisdictional error, it was "a decision that lack[ed] legal foundation and [wa]s properly regarded, in law, as no decision at all". Gleeson CJ approached the issue somewhat differently, but ultimately concluded that (at [15]):

… it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate's decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him.  On the contrary, it was in accordance with the requirements of the Act.

18                  The situation in the present proceedings can be contrasted with that in Bhardwaj. In the present proceedings, there was no jurisdictional error attending the Tribunal's decision in the first application for review. Indeed, various applications for judicial review of the Tribunal's decision on the first review application were rejected: see SZBWJ & Ors v Minister for Immigration [2005] FMCA 508; SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13; SZBWJ v Minister for Immigration & Citizenship [2007] HCATrans 100.

Conclusions

19                  In considering the operation of the relevant statutory provisions, I agree with Goldberg J  in Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301, where his Honour concluded that the Tribunal did not possess the power to reopen or reconsider a decision that it had previously made. His Honour said (at 317):

When one takes into account the statutory provisions to which I have referred and in particular has regard to the provisions relating to the opportunity to make a further application to the Minister and a further application to the Tribunal, I do not consider it would be proper, in the absence of a clear legislative intention, to imply a power in the Tribunal to reconsider or re‑open a decision.

20                  The applicant seeks to distinguish Jayasinghe on the basis that in the context of the present proceedings, the Tribunal is not reopening or reconsidering a decision it has previously made. Rather, it is argued, the applicants in the present proceedings are merely seeking the independent consideration by the Tribunal of a second application for review. 

21                  However,  subsequent authority supports the proposition that the Tribunal was correct in deciding that it did not have jurisdiction to consider the applicants second review application  As the High Court said in Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30]:

 It would be inconsistent with [the] scheme [of the Act] and contrary to the ordinary reading of Div 2 of Pt 7 of the Act to treat the decision of the tribunal as provisional in nature.  In the situation where the tribunal had, without reviewable error, disposed of an application for review of the decision of the delegate . . ., the Act did not confer upon the tribunal any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances.”

22                  The High Court's decision in Thiyagarajah accords with the view I took in SZASO v MIAC [2007] FCA 771 at [4], where I said that "the Tribunal's conclusion that it no longer had jurisdiction to review the delegate's decision, having already discharged its functions under the Act to review the delegate's decision, was correct".  I also agree with the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 which concluded (at [45]) that "[a]n application for review may not be reopened in a fashion which avoids the limitations imposed by ss 48A and 48B of the Act upon further applications for protection visas".

23                  Accordingly, to the extent it is required, I grant leave to appeal and order that the appeal be dismissed with costs.

Associate:

Dated:         21 August  2008