FEDERAL COURT OF AUSTRALIA

Somba v Minister for Home Affairs (No 2) [2018] FCA 1537

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent, to be assessed if not agreed.

3.    The injunction granted by Thawley J on 4 July 2018 until further order be discharged.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BARKER J:

1    The applicant, a citizen of Indonesia, applies for judicial review of a decision of the Administrative Appeals Tribunal by which the Tribunal refused to reinstate the applicant’s application for review of a decision of a delegate of the Minister for Home Affairs. The delegate had earlier refused to revoke a decision of the Minister to cancel the applicant’s visa, under the Migration Act 1958 (Cth).

2    The key issue in the proceeding concerns the proper construction of s 500(6L) of the Migration Act, and particularly the expression in para (c), “the Tribunal has not made a decision under s 42A”.

3    Section 500(6L) provides:

If:

(a)     an application is made to the Tribunal for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and

(b)     the decision relates to a person in the migration zone; and

(c)     the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.

4    The question of the proper construction of this provision arises in the following circumstances.

5    On 15 June 2016, the applicant’s transitional permanent (class BF) visa was mandatorily cancelled under s 501(3A) of the Migration Act because the applicant failed to pass the character test specified by s 501 of the Migration Act.

6    The decision-maker was satisfied that the applicant did not pass the character test based on his substantial criminal record. The decision-maker referred to the sentencing remarks made in the District Court of New South Wales upon the applicant’s conviction for serious assault and robbery offences, and the sentence he was serving of imprisonment on a full-time basis in a custodial institution.

7    The applicant then made representations, as he was invited to make under the Migration Act, and asked for the cancellation decision to be revoked.

8    On 24 October 2017, the delegate refused to revoke the applicant’s visa cancellation. The delegate was not satisfied that the applicant passed the character test, and did not consider that there was another reason why the cancellation decision should be revoked. This decision was notified to the applicant the following day.

9    On 1 November 2017, the applicant applied to the Tribunal under s 500 of the Migration Act for review of the delegate’s decision not to revoke the cancellation of his visa.

10    In a decision dated 8 January 2018, the Tribunal dismissed the applicant’s application for review under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), following his failure to appear at the hearing scheduled for that day.

11    On 6 February 2018, the applicant applied, under s 42A(8A) of the AAT Act, for his application for review to be reinstated.

12    The reinstatement application was heard by the Tribunal on 8 March 2018.

13    On 5 June 2018, the Tribunal dismissed the applicant’s reinstatement application because it considered any order for reinstatement would be futile having regard to the terms of s 500(6L) of the Migration Act, and in particular, because the period of 84 days referred to in para (c) had already expired.

14    On 20 June 2018, the applicant filed an application for judicial review in the Federal Circuit Court, seeking an order quashing the Tribunal’s reinstatement refusal decision.

15    On 2 July 2018, the applicant also filed an application in the Circuit Court seeking an injunction preventing the Minister from taking steps to deport him until the conclusion of his Circuit Court proceeding. This application was supported by an affidavit which annexed a copy of a “notice of intention to remove from Australia” letter sent by Australian Border Force to the applicant, advising that it was anticipated that he would be removed from Australia on 5 July 2018.

16    A judge of the Circuit Court made an order transferring the applicant’s applications to this Court on 3 July 2018, on the basis that the Circuit Court lacked jurisdiction to deal with the matter.

17    On 4 July 2018, Thawley J made urgent orders restraining the Minister from removing the applicant from Australia and referring him for legal assistance. See Somba v Minister for Home Affairs [2018] FCA 1022.

18    The application now before this Court, as outlined in an amended application filed on 19 July 2018, is made on the ground that the Tribunal fell into jurisdiction error by:

(1)    misconstruing and misapplying s 500(6L) of the Migration Act; and

(2)    failing to have regard to the beneficial and remedial purpose of s 42A(8A) of the AAT Act.

19    The two grounds are related.

Did the Tribunal err?

20    As noted, on 5 June 2018, the Tribunal dismissed the applicant’s reinstatement application.

21    In its decision record, the Tribunal stated that the applicant was duly notified of the final hearing listed before the Tribunal on 8 January 2018 and that the usual arrangements were made with Villawood Detention Centre, where the applicant was being detained.

22    It outlined that on the morning of the hearing, the management of the detention centre advised that the applicant refused to be transported to the Tribunal and that he refused to come to the telephone.

23    The Tribunal then set out the following evidence given by the applicant concerning his reinstatement application:

    on the morning of the hearing he suffered a migraine headache and could not walk properly;

    management refused his request for a nurse to attend him;

    he thought that he may have been affected by sleeping pills he had taken the previous evening;

    he did not think he was properly prepared for the hearing and was overwhelmed by the whole situation;

    he had been told that even if the Tribunal made a decision in his favour the Minister would cancel the decision in any event; and

    in the light of all these factors he felt “overwhelmed and defeated”.

24    The Tribunal stated that, despite the circumstances of the applicant’s failure to attend the hearing, the reinstatement application should be refused as an order for reinstatement would be futile.

25    It considered that the effect of s 500(6L) was that, unless the applicant’s application for review was finalised before the Tribunal within 84 days of the applicant being notified of the delegate’s decision, the delegate’s decision under review must be affirmed. It explained that the applicant was notified of the decision on 25 October 2017, meaning the 84th day after notification was 17 January 2018.

26    The Tribunal stated that the applicant did not apply for reinstatement of the merits review application which had been dismissed under s 42A of the AAT Act until 6 February 2018, 20 days after the expiry of the 84 day period. It considered that it was clear, from the context of the Migration Act, that applications for review of visa cancellation decisions, where applicants are onshore, must be dealt with within a strict timeframe.

27    The Tribunal held that, in these circumstances, even if the applicant’s application were to be reinstated as of the day he applied for reinstatement, s 500(6L) of the Migration Act would immediately apply and the decision under review would have to be affirmed by the force of the provision.

28    In reaching its conclusion the Tribunal considered whether s 500(6L) did not apply in the matter because the Tribunal had made a decision under s 42A of the AAT Act. It was, however, satisfied that the reference to the Tribunal having “not made a decision under section 42A” was a reference to a decision under that section which remains in force, a view consistent with the context of the Migration Act in which s 500(6L) exists.

29    The Tribunal considered there was an additional reason to support its conclusion, as found in s 42A(9) of the AAT Act, which subsection gives it discretion to decide whether dismissed applications should be reinstated. It stated that if it decided to reinstate the application, the previous order dismissing the application would cease to have effect for all purposes, including the purpose of other legislation including the Migration Act.

30    It is useful to set out here the provisions of the AAT Act relevant to the applicant’s arguments.

31    Section 42A of the AAT Act relevantly provides:

Dismissal if party fails to appear

(2)     If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

(a)     if the person who failed to appear is the applicant––dismiss the application without proceeding to review the decision

…

Dismissal if party fails to appear—giving of appropriate notice

(7)     Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.

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 (8B), 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 (8B), apply to the Tribunal for reinstatement of the application.

(8B)     For the purposes of subsections (8) and (8A), the period is:

(a)     28 days after the party receives notification that the application has been dismissed; or

(b)     if the party requests an extension––such longer period as the Tribunal, in special circumstances, allows.

(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 or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

32    Section 43 of the AAT Act relevantly provides:

…

Tribunal’s decision on review

(1)     For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)     affirming the decision under review;

(b)    varying the decision under review; or

(c)     setting aside the decision under review and:

(i)     making a decision in substitution for the decision so set aside; or

(ii)     remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

33    With regard to s 500(6L) of the Migration Act, the applicant submits that because para (a) and para (b) were satisfied, the question was whether para (c) was met. If not, the 84 day decision period does not apply.

34    The applicant submits the Tribunal made a decision under s 42A when it made orders dismissing the application for review upon the applicant’s failure to attend the scheduled hearing. Thus, it follows that s 500(6L) was not engaged, and there was no cause to deem the application for merits review dismissed; or its reinstatement to be futile under s 43 of the AAT Act. The application had been dismissed under s 42A(2).

35    In any event, the applicant submits, s 500(6L) does not expressly limit the power of the Tribunal to conduct a review, or authorise the Tribunal to give less than the proper consideration of the matter before it under s 33 of the AAT Act, referring to Uelese v Minister for Immigration and Border Protection and Another (2015) 256 CLR 203 at [54]; [2015] HCA 15 and the Court’s consideration of s 500(6H) in that case.

36    In that light, the applicant refers to the 28 day time period provided for in s 42A(8B) of the AAT Act, which commences when the party received notification that the application has been dismissed, or, if the party requests an extension, such longer period as the Tribunal, in special circumstances, allows.

37    He says that, even if he was out of time under s 42A(8B)(a) of the AAT Act, he still had a right to apply for an extension under s 42A(8B)(b) and the Tribunal had a duty to hear that application.

38    The Minister contends that the Tribunal’s reasoning for its conclusion, that it would have been futile to have ordered reinstatement, was correct and does not involve any legal error.

39    The Minister submits that the effect of reinstatement, when ordered under s 42A(9) of the AAT Act, is that the previous order for dismissal made under s 42A(2)(a) ceases to have any effect, and the Tribunal must then proceed to determine the application, but subject always to the 84 day limitation.

40    Accordingly, the Minister says, if an application is dismissed under s 42A(2) of the AAT Act and later reinstated pursuant to s 42A(9), the true position is that the initial merits review application remains on foot, but subject to the operation of s 500(6L) of the Migration Act.

41    As for the operation of s 500(6L) that he contends for, the Minister submits that his construction is supported by the Explanatory Memorandum and the second reading speech in relation to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998 (Cth). As noted at para 37 of the Explanatory Memorandum, the amendments to insert new ss 500(6A)-(6L) were stated to be “necessary in order to expedite review of decisions made by a delegate of the Minister under the new character provisions”.

42    Further, the Minister says, in relation to new s 500(6L), the final bullet point at para 41 of the Explanatory Memorandum stated:

the original decision is deemed to be affirmed by the AAT if the AAT has not, for whatever reason, made a decision in respect of the application within 84 days of the person being notified of the decision (new subsection 500(6L)). [Emphasis added]

43    Likewise, the Minister notes, in his second reading speech the former Minister for Immigration, Hon Philip Ruddock MP, referred to the average time then currently taken for such cases at merits review (227 days), and noted that many cases took even longer. Mr Ruddock stated:

During this time, the non-citizens involved, many of whom have committed serious crimes, either will be in detention at great cost to taxpayers or will be at liberty in the community. Quite frankly, this must stop. This bill introduces more streamlined procedures for dealing with such cases. It also introduces a strict 84 day time limit for the conduct of merits review cases involving character where the non-citizen is in Australia. [Emphasis added]

44    The Minister submits that the clear intention of Parliament in introducing s 500(6L) of the Migration Act was that the relevant review process would take no longer than 84 days, and if at the end of the period there was no decision, with the application still on foot, then the delegate’s decision would be deemed to be affirmed pursuant to s 43 of the AAT Act.

45    In relation to the operation of s 42A of the AAT Act and its interaction with s 500(6L) of the Migration Act, the Minister submits in his written submissions that:

20.     It is the case that s 42A of the AAT Act applies to all applications for review, not just to applications in regard to character decisions. However, where reinstatement is sought in relation to a decision under s 42A(2) in relation to an application for review of a character decision, the applicant needs to be mindful of the 84 day period in making such an application, as does the Tribunal in the time it takes to consider such a reinstatement application.

21.     While ordinarily an applicant may have 28 days to seek reinstatement, where the decision concerns a character decision of a delegate to which s 500(6L) is applicable, the applicant must be mindful that delays in bringing such a reinstatement application may risk a deemed affirmation of the decision under review by operation of s 500(6L) in the event that reinstatement is granted and no decision in respect of the reinstated application is made by the Tribunal by the end of the 84 day period: see Uelese v Minister for Immigration and Border Protection [2015] HCA 15 at [75] and [76] per French CJ, Kiefel, Bell and Keane JJ.

22.     In this matter, the 84 day period under s 500(6L) ended on 17 January 2018 (at [13]). Accordingly, after the Tribunal’s s 42A(2) dismissal decision on 8 January 2018 it was possible for the applicant to make an application for reinstatement, and for the application to be determined by the Tribunal, and if reinstatement was allowed, for there to have been a hearing and a decision by the Tribunal by 17 January 2018. See by way of comparison the decision of Deputy President Forgie in KQHR and Minister for Immigration and Border Protection [2018] AATA 684 at [31] where the Deputy President made a reinstatement decision on the 84th day and then proceeded to make a decision under s 43 of the AAT Act that same day before the deeming provisions of s 500(6L) applied.

23.     However, the fact that the applicant left making his reinstatement application until 6 February 2018, had the result, as the Tribunal correctly concluded, that it would be futile to grant reinstatement because pursuant to s 500(6L)(c) the decision under review would have been deemed to have been affirmed under s 43 of the AAT Act at the end of the period of 84 days ending on 17 January 2018.

46    I turn now to my consideration of the proper construction of those two relevant provisions, and in particular para (c) of s 500(6L) of the Migration Act. It is not in issue between the parties that at all material times, the Tribunal was possessed of the power to reinstate the initial merits review application that had been dismissed by reason of the failure of the applicant to attend the scheduled hearing. The reinstatement power, in this case, arose by virtue of s 42A(9) of the AAT Act. However, in my view, if the Tribunal had ordered reinstatement, the Tribunal then called upon to hear the reinstated merits review application would have been bound to dismiss the application by reason of the operation of s 500(6L).

47    In particular, para (c) of that provision plainly would have been satisfied, in that, by reason of the reinstatement order, the merits review application would then have been pending for consideration by the Tribunal. The effect of reinstatement would be that no decision under s 42A of the AAT Act in relation to the decision then under review would be extant. In particular, the Tribunal would not have made a decision under s 42A in relation to the decision then under review within the period of 84 days after the day on which the applicant was notified of the decision under review in accordance with s 501G(1). Section 500(6L) would then apply.

48    To put the matter very shortly, I accept the submission made on behalf of the Minister that, in the event reinstatement was ordered, in a case such as this, para (c) would be satisfied as there would have been no relevant decision made under s 42A of the AAT Act within the 84 day period.

49    It follows that the Tribunal was right, in dismissing the reinstatement application, to conclude that to order reinstatement would be futile. The Tribunal would have been bound to dismiss a reinstated application because the 84 day decision-making period had expired and the decision that would have been under review would be taken to have already been affirmed by force of the deeming provision of s 500(6L).

50    In these circumstances, this application should be dismissed and the injunction granted by Thawley J on 4 July 2018 until further order be discharged.

Orders

51    The Court orders:

(1)    The application be dismissed.

(2)    The applicant pay the costs of the first respondent, to be assessed if not agreed.

(3)    The injunction granted by Thawley J on 4 July 2018 until further order be discharged.

Associate:

Dated:    12 October 2018