FEDERAL COURT OF AUSTRALIA

Ikupu v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 234

ORDERS

THE COURT ORDERS THAT:

1.    A writ of mandamus issue requiring the Administrative Appeals Tribunal to determine the applicant’s application according to law.

2.    The first respondent pay the applicant’s costs of the proceeding as agreed or assessed.

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

REASONS FOR JUDGMENT

JAGOT J:

1    On 10 February 2020 I published my reasons for judgment in Ikupu v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 74.

2    I decided that the Administrative Appeals Tribunal (the Tribunal) had denied the applicant procedural fairness. I made an order quashing the Tribunal’s decision. I deferred consideration of making an order in the nature of mandamus so the parties could decide if they wished to be heard in respect of s 500(6L) of the Migration Act 1958 (Cth). Section 500(6L) provides that if the Tribunal has not made a decision within a period of 84 days from notification of the decision under review, the Tribunal is taken to have made a decision affirming the decision under review.

3    The parties filed a joint submission in relation to the operation of s 500(6L). The parties submitted that the Tribunal’s decision of 13 August 2019, even though quashed by the Court, is nevertheless a decision for the purposes of s 500(6L) so that the section has no application, with the consequence that an order in the nature of mandamus should be made.

4    The joint submissions at [7] referred to Hall v Minister for Immigration & Multicultural Affairs [2000] FCA 415 (“Hall”) in which Finkelstein J said:

[30]    In my view s 500(6L) will have no application when a matter is remitted to the Tribunal for its reconsideration. Section 500(6L) comes into operation when the Tribunal has not made a decision. For the purposes of that subsection a decision has the same meaning as in the Administrative Appeals Tribunal Act 1975 (Cth): see s 500(7). In that Act a decision is taken to include making or refusing to make an order or determination. The decision of the Tribunal to dismiss the application to review for want of jurisdiction is a decision for the purposes of s 500(6L). Thus the decision under review can no longer be affirmed by default.

[31]    In the result the Tribunal will not be under any time constraint to deal with the remitted application. This notwithstanding, I assume that the Tribunal will act in accordance with the general policy of the Migration Act and deal with the application as expeditiously as possible.

5    Hall was approved by the Full Federal Court in Somba v Minister for Home Affairs [2019] FCAFC 150 at [36]. The Full Court continued at [38]:

…after reinstatement of an application, of the original decision to dismiss, for the purposes of s 500(6L) that decision is one which has in fact been made so s 500(6L)(c) is no longer engaged. We see no cause to read in to s 500(6L) a requirement that the decision be one that has continuing legal effect.

6    The Full Court considered the same issue in Khalil v Minister for Home Affairs [2019] FCAFC 151 saying:

[63]    In Somba the question was whether a decision to dismiss an application under s 42A of the AAT Act for default in appearance meant that s 500(6L)(c) was no longer engaged, even though the application for review was subsequently reinstated under s 42A(9). In this appeal, the question is whether the Tribunal's decision (made under s 43 of the AAT Act) means that s 500(6L)(c) is no longer engaged, even after the decision is quashed by the issue of a writ of certiorari.

[64]    In this appeal both the appellant and the Minister submitted that s 500(6L) would have no further application if the court were to quash the Tribunal's decision. It therefore suffices to say that that submission is consistent with the construction of s 500(6L) set out in Somba, and with the approach that Finkelstein J took in Hall v Minister for Immigration & Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387 at [30]‑[31]. The quashing of the Tribunal's decision here will not result in s 500(6L) being engaged or re‑engaged, and no deemed affirmation of the delegate's decision will arise under that provision.

7    The parties thus submitted that an order in the nature of mandamus directed to the Tribunal should be made. I agree. I record my thanks to the parties and their legal representatives for the joint submission. The order for costs the applicant sought should also be made.

Associate:

Dated:    28 February 2020