FEDERAL COURT OF AUSTRALIA

BWI18 v Minister for Home Affairs [2020] FCA 290

ORDERS

THE COURT ORDERS THAT:

1.    The Application for an extension of time in which to appeal is refused.

2.    The proceeding is dismissed.

3.    The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Applicant in the present proceeding, identified by the pseudonym BWI18, is a citizen of Malaysia who arrived in Australia in October 2016 on a visitor visa.

2    He applied for a protection visa in January 2017 but, on 31 March 2017, a delegate of the Minister refused that application. The Applicant then applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of that decision. The Tribunal affirmed the delegate’s decision on 2 February 2018 and notified the Applicant of that decision by way of a letter dated 6 February 2018.

3    In March 2018 the Applicant lodged a further application for review with the Tribunal. The decision sought to be reviewed was identified as a “[v]isa refusal” and the date of the decision was identified as “6/02/2018”. On 13 March 2018 the Tribunal published its Statement of Decision and Reasons, finding that it did not have jurisdiction to review the delegate’s decision a second time. Those reasons relevantly concluded:

3.    The Tribunal notes that the applicant previously sought review of a decision to refuse to grant him a protection visa (which is a reviewable decision) to the Administrative Appeals Tribunal. The Tribunal made a decision on that application on 2 February 2018, notified to the applicant on 6 February 2018 (case reference 1708731). Where a Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.

4.    Therefore, as the original decision to refuse a protection visa has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision by this Tribunal. Additionally, a Tribunal decision is not reviewable by the Tribunal.

The Applicant was notified of that decision by way of a letter dated 14 March 2018.

4    In April 2018 the Applicant sought review of the delegate’s decision in the Federal Circuit Court of Australia (the “Federal Circuit Court”). The Application filed in that Court identified the “migration decision” sought to be reviewed as both a “[d]ecision made by a tribunal” and as a decision made by the “Immigration Assessment Authority”. No date for the Tribunal decision was identified, but the decision of the Authority was identified as being “31. /March /2017”. No application for an extension of time was sought in the Application as filed. An affidavit filed in April 2018 by the Applicant in the Federal Circuit Court states that “My AAT was rejected 13 march 2018”. The affidavit then sets forth six “grounds of appeal”.

5    On 14 June 2019 the Federal Circuit Court delivered ex tempore reasons for its decision to dismiss the application: BWI18 v Minister for Home Affairs [2019] FCCA 1769. Those reasons identify the decision the subject of review as being the decision of the Tribunal made in March 2018. Those reasons make apparent that the Tribunal raised with the Applicant whether the decision sought to be reviewed was the one identified in the Application, namely the March 2018 Tribunal decision, or whether he was seeking review of the Tribunal decision made in February 2018: [2019] FCCA 1769 at [22]. The Federal Circuit Court’s reasons state that the Applicant “did not give any indication [that] he wanted [the] Court to review the First Tribunal decision” (at [22]) and that all he wanted was “to get [his] Visa back” (at [23]). In such circumstances, the Federal Circuit Court concluded:

    that the Tribunal was correct in its decision in March 2018 that it did not have jurisdiction and that none of the grounds of review had been made out ([2019] FCCA 1769 at [25] to [34]);

and further concluded that:

    even if the Applicant had been seeking review of the earlier Tribunal decision made in February 2018, the Federal Circuit Court was “not persuaded that any application for judicial review of the First Tribunal decision that could be encompassed within the grounds presently sought by the Applicant in relation to the Second Tribunal decision has any reasonable prospects” (at [44]) and that it “would not be in the interests of the administration of justice to grant an extension of time” (at [46]).

6    The Applicant now seeks an extension of time within which to appeal the decision of the Federal Circuit Court.

The extension required & the proposed grounds of appeal

7    The Applicant was required to file and serve a notice of appeal within 28 days of the judgment of the Federal Circuit Court delivered on 14 June 2019: r 36.03 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”). The Applicant filed his Application for extension of time on 30 July 2019, being about 18 days out of time.

8    This Court unquestionably has an “unconfined” discretion to extend the time within which an applicant may appeal from a decision of the Federal Circuit Court. Rule 36.05 of the Federal Court Rules provides for the making of such an application: BUD17 v Minister for Home Affairs [2018] FCAFC 140 at [82], 264 FCR 134 at 154 per Robertson, Steward and Thawley JJ.

9    The Applicant in the present case does not require a lengthy extension of time and only requires a comparatively short extension. That delay is not the obstacle to success for the Applicant. Some explanation has been provided for the delay, namely an initial consultation with a lawyer and a request for the payment of “an upfront fee”, and an absence of knowledge as to the necessity to appeal within a specified period.

10    The obstacle to success is the absence of any self-evident merit in the proposed Grounds of Appeal, assuming an extension of time were to be granted. The proposed Grounds of Appeal were expressed in the accompanying affidavit to the Application for extension of time as follows (without alteration):

3.    The decision from the Federal Circuit Court has a judicial error.

4.    The decision was incorrect because the Administrative Appeals Tribunal member uses incorrect information in the judgement and was bias against me.

The March 2018 decision of the Tribunal that it did not have jurisdiction is clearly correct. And neither of the two proposed Grounds of Appeal have any merit.

11    So much follows from the fact that the Tribunal does not have an unlimited jurisdiction to review all decisions made under the Migration Act 1958 (Cth) (the “Migration Act”).

12    The Tribunal only has such jurisdiction as is vested in it by an express statutory provision. There are two such provisions. First, Div 2 of Pt 5 of the Migration Act provides for the review of what it identifies as a “Part 5 – reviewable decision”. Section 338 defines that phrase and ss 347, 348 and 349 broadly vest jurisdiction in the Tribunal to review such decisions. Second, and the provision of present relevance, Div 2 of Pt 7 provides for the review of what it identifies as a “Part 7 – reviewable decision”. Section 411 defines that phrase as being what may generally be described as “protection visa” decisions. When undertaking its review in February 2018 of the delegate’s decision in March 2017, the Tribunal was exercising the jurisdiction to review a “Part 7 – reviewable decision”, identified in s 411(1)(c) as follows:

Subject to subsection (2), the following decisions are Part 7-reviewable decisions:

…

(c)    a decision to refuse to grant a protection visa, other than a decision that was made relying on:

(i)    subsection 5H(2), or 36(1B) or (1C); or

(iii)    paragraph 36(2C)(a) or (b);

…

13    Missing from s 411 is any reference to a “Part 7 – reviewable decision” as including a decision previously made by the Tribunal. The Tribunal was thus correct in concluding in March 2018 that it did not have any jurisdiction to review a decision previously made by the Tribunal, albeit a decision which itself was reviewing the refusal of a protection visa. So much is not surprising. Once the Tribunal has completed its statutory task of reviewing such a decision, the means of review provided for have been exhausted: SZASP v Minister for Immigration and Citizenship [2007] FCA 771. Moore J there concluded:

[4]    It is necessary to first say something about the applicant’s attempt to seek a second review of the delegate’s decision in the Tribunal. 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: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30], Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7], and Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor (1997) 76 FCR 301. The Tribunal was also correct in finding that changed circumstances did not provide any legal basis for undertaking a second review. The avenue provided by the Act to take into account changed circumstances, at least potentially, is the Minister’s power to permit lodgement of a further protection visa application under s 48B of the Act.

See also: SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175 at [22], (2008) 171 FCR 299 at 306 per Moore J; NAPF v Minister for Immigration and Border Protection [2017] FCA 117 at [15] per Griffiths J.

14    Moreover, neither of the two proposed Grounds of Appeal have any merit. The first proposed Ground fails to identify with any precision the “judicial error” sought to be relied upon. And the second proposed Ground equally fails to identify the “incorrect information” referred to. The terms in which the Tribunal decision is expressed do not provide any foundation for any argument as to “bias”. Indeed, the manner in which the Tribunal proceeded manifests an attempt to understand the case sought to be mounted by the Applicant. There is no other factual foundation for any argument as to “bias”. If the Tribunal did not have jurisdiction to undertake a second review of the delegate’s March 2017 decision, the second Ground of Appeal falls away.

15    The same concern, however, as presumably worried the Federal Circuit Court, again needs to be revisited. Few persons applying for a protection visa may be expected to have a mastery of the Migration Act and the procedural requirements to be met when seeking to have a decision reviewed on its merits by the Tribunal or by means of judicial review. Few of those applicants may be expected to know which decisions may be reviewed by the Tribunal or the time within which applications may be made to either the Tribunal or a Court. Also, few of those applicants may also be expected to have any degree of familiarity with the forms required to be completed when seeking review.

16    Considerable disquiet is thus expressed with any approach where procedural forms – such as those required to be completed when invoking the Tribunal’s jurisdiction – are to be construed with an unnecessary degree of technicality. And, accordingly, considerable disquiet is expressed with placing undue weight upon any response provided by such an applicant when questioned as to which particular decision he seeks to have reviewed or as to where the jurisdictional error arises. As the Applicant in the present proceeding said in response to a question from the Tribunal, all he wanted was “to get [his] Visa back”.

17    On one view of the facts, what the Applicant was forever seeking to have reviewed was the decision first made on 31 March 2017. So much followed from:

    his first application to the Tribunal to have that decision set aside;

    the form of Application completed in March 2018 seeking review of the “Visa refusal” decision;

    the form of Application made to the Federal Circuit Court, identifying the “migration decision” sought to be reviewed as including the decision of the Immigration Assessment Authority dated 31 March 2017, the only such decision not being a decision of the Authority, but the decision of the delegate; and

    his statement to the Federal Circuit Court when questioned as to what decision he wanted to have reviewed, being that all he wanted was “to get [his] Visa back”.

To focus attention on such matters is not to ignore the difficulties otherwise found in contrary statements made by the Applicant, and the insurmountable obstacle of the Tribunal in March 2018 having no jurisdiction to review the March 2017 decision, given the earlier Tribunal decision in February 2018.

18    Irrespective of such difficulties as were obviously being experienced by an Applicant with little understanding of the Australian legal system and whose first language was not English, that which at a very practical level dooms his case to failure is the fact that:

    there is no self-evident legal error in the February 2018 decision of the Tribunal.

At a more legally disciplined level, that which dooms his case to failure is the fact that:

    the Tribunal, in March 2018, was correct in concluding that it had no jurisdiction to review the earlier February 2018 decision and “no jurisdiction to review a delegate’s decision twice”.

CONCLUSIONS

19    The Application for an extension of time in which to bring the appeal should be refused. Although the extension of time required is comparatively short, any appeal has no prospects of success.

20    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The Application for an extension of time in which to appeal is refused.

1.    The proceeding is dismissed.

2.    The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:    

Dated:    11 March 2020