Federal Court of Australia

Lesianawai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 454

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal dated 27 August 2021 be dismissed.

2.    The appellant pay the first respondent’s costs 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    I have before me today a notice of appeal by which the appellant seeks to appeal from a judgment given on 4 August 2021, Lesianawai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 816.

2    The grounds of appeal are identified as follows:

1.    Error of law –The learned primary Judge made error in finding that :

2.    Application for extension of time for making an application for review of a decision to Administrative appeals tribunal is in jurisdiction to consider applications for process under :

3.    Subsection 29(7) of the Administrative Appeals Tribunal Act 1975 provides that a person may apply to the AAT to extend the time for making an application for a review (sic)

3    The primary judge dismissed the application for an extension of time within which to lodge an application for the review of a migration decision.

4    The primary judge provided comprehensive written reasons identifying why his Honour characterised the application before him as one for an extension of time within which to lodge an application for the review of a migration decision, saying:

Jurisdiction

[11]    To the extent Mr Lesianawai purports to challenge the delegate’s decision to cancel his visa, this Court does not have jurisdiction. Section 476A(1) of the Migration Act limits the Court’s jurisdiction in relation to migration decisions ‘despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977’. The Court does not have jurisdiction to review a decision made by a delegate under s 501 of the Migration Act. These proceedings therefore can only be entertained to the extent that they raise a challenge to the Tribunal’s decision dated 8 November 2018.

[12]    It is unclear whether Mr Lesianawai seeks an extension of time to commence a review in the Court’s original jurisdiction under s 476A of the Migration Act in review of a ‘migration decision’, or whether he seeks to appeal the Tribunal’s decision pursuant to s 44 of the AAT Act. Part IVA of the AAT Act (of which s 44 forms part) does not apply to an application in relation to, or a proceeding for the review of a privative clause decision, a purported privative clause decision, or an AAT Act migration decision, as defined in the Migration Act. As the proceeding dismissed by the Tribunal on 9 October 2013 was a review of a decision under s 501(2) of the Migration Act, Pt IVA (including s 44) does not apply to a decision of the Tribunal in that proceeding. Further the draft originating application does not articulate any substantive questions of law as required under s 44 of the AAT Act. It appears that the Tribunal’s decision the subject of review is a ‘privative clause decision’ as defined in s 474(2) and s 474(3)(i) of the Migration Act, and that Mr Lesianawai purports to invoke the Court’s original jurisdiction under s 476A(1)(b) of the Migration Act. In this regard, s 477A(1) of the Migration Act requires any application to this Court under s 476A(1)(b) must be made within 35 days of the Tribunal’s decision. On this basis, Mr Lesianawai is approximately two years and three months out of time.

5    The primary judge noted that while the appellant’s application was substantially out of time, the Court had a discretion under s 477A(2) of the Migration Act 1958 (Cth) to extend time if satisfied that it is necessary in the interests of the administration of justice to make the order: [15]. The primary judge gave detailed consideration to all the relevant circumstances, including as set out below:

[20]    It is necessary for the Court to consider the merits of Mr Lesianawai’s proposed grounds only on an impressionistic basis for the purposes of determining whether an extension of time ought to be granted: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (at [58]-[63]), approved by the Full Court in MZABP v Minster for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 (at [38]). Even on an impressionistic level, the proposed grounds of review do not reveal any arguable challenge to the Tribunal’s decision.

[21]    The Tribunal was correct to determine that it did not have before it a decision capable of review. Section 25(1) of the AAT Act provides that an:

enactment may provide that applications may be made to the Tribunal, (a) for review of decisions made in the exercise of powers conferred by that enactment, or (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

[22]    Section 500(1)(b) of the Migration Act gives the Tribunal jurisdiction to review decisions of a delegate of the Minister made under s 501. Section 500(6B) provides that such applications for review must be made within nine days of notification under s 501G(1). The extension of time provisions in ss 29(7), 29(8), 29(9) and 29(10) do not apply: s 500(6B). As stated above, Mr Lesianawai was substantially out of time in seeking review of the delegate’s decision to cancel his visa, and the Tribunal was correct in so finding. It had no choice to find otherwise.

[23]    The evidence reveals that Mr Lesianawai was properly notified of the decision to cancel his visa…

[24]    Realistically, it may well be accepted that Mr Lesianawai has been confused by the technicalities involved. That would be hardly surprising. But it does not follow that he has not been accorded an adequate opportunity within the requirements of the Migration Act to address the matters he now seeks to raise. In relation to the contention of a denial of procedural fairness, whether the Tribunal had jurisdiction to review the delegate’s cancellation decision, in light of the prescribed time limit in s 500(6B), is a question of jurisdictional fact. The answer to that question is not dependent upon whether the Tribunal afforded procedural fairness to Mr Lesianawai. In any event, the evidence shows that the issue of the Tribunal’s jurisdiction was raised and he had an opportunity to make submissions to the Tribunal about its jurisdiction at the case management directions hearing that was held on the day of the Tribunal’s decision. The assertion of a denial of procedural fairness fails at an impressionistic level to make out error in the Tribunal’s decision.

6    In this case, the only submissions that the appellant made in support of the appeal and against the notice of objection to competency filed by the Minister are as follows:

1-ater 8 years jail I am suffering from a mental disorder

2-separation from kids and families for 8 years not in normal mind

3-when I come to detention there was no legal help and lack of resources

6. since covid there was no help at detention at all to help on legal papers .

I will really appreciate your honour if my application for extension of time be allowed

7    The Minister provided an outline of submissions which explains that because the decision of the primary judge was to refuse to make an order under s 477A(2) of the Migration Act (that is, to refuse the extension of time), s 476A(3)(b) of the Act applies. Under that section, an appeal may not be brought in the Federal Court from a judgment that makes an order or refuses to make an order under s 477A(2). For this reason, the Minister filed the notice of objection to competency.

8    As the Minister’s submissions disclose, the problem for the appellant is that s 476A(3)(b) of the Migration Act operates despite s 24 of the Federal Court of Australia Act 1976 (Cth). Section 476A(3)(b) provides that this Court does not have jurisdiction to entertain any appeal from the order that the primary judge made dismissing the appellant’s application for an extension of time.

9    In these circumstances, nothing that the appellant has said in support of his appeal can change the fact that this Court does not have jurisdiction to entertain the appeal. The inevitable result is that the notice of objection to competency, which the Minister filed, must be upheld, and the appeal, accordingly, dismissed.

Associate:

Dated:    28 April 2022