Federal Court of Australia

Rauhina v Administrative Appeals Tribunal [2024] FCA 767

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the second respondent’s costs to be agreed or, failing agreement, to be taxed.

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

REASONS FOR JUDGMENT

DOWNES J:

1    This is an application for judicial review of a decision of the first respondent (the Tribunal) to refuse to grant the applicant an extension of time to seek merits review of a decision of the second respondent (the Minister) not to revoke the mandatory cancellation of the applicant’s visa.

2    For the following reasons, the application will be dismissed with costs.

Background

3    The applicant is a citizen of New Zealand. On 21 November 2012, the applicant was granted a Class TY Subclass 444 Special Category (Temporary) visa.

4    On 22 January 2018, the applicant was convicted in the District Court of Western Australia for the offences of “Possession of a prohibited drug with intent to sell or supply (methylamphetamine)” and “Possession of stolen or unlawfully obtained property”. He was sentenced to terms of imprisonment of 22 months and 3 months respectively, to be served concurrently.

5    On 15 February 2018, a delegate for the Minister cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the basis that the applicant failed the “character test” pursuant to ss 501(6)(a) and 501(7)(c) of the Migration Act.

6    On 7 March 2018, the applicant made representations to the Minister seeking the revocation of the mandatory cancellation decision pursuant to s 501CA(4) of the Migration Act.

7    On 26 July 2018, the applicant departed Australia and has resided in New Zealand since that time.

8    On 22 December 2021, a (different) delegate for the Minister made the decision to refuse to revoke the mandatory cancellation decision (the non-revocation decision). On 23 December 2021, the applicant was notified of the delegate’s non-revocation decision by the Department for Immigration, Citizenship and Home Affairs (the Department) by emails which attached, in particular, a covering letter from the Department and the non-revocation decision. However, as will be discussed below, the applicant contends in this proceeding, as he did before the Tribunal, that he did not receive those emails.

9    The applicant had the right to seek merits review of the non-revocation decision before the Tribunal pursuant to s 500(1)(ba) of the Migration Act, which application was required to be brought within 28 days of the applicant being given the documents setting out the terms of the decision: s 29(2)(a) Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

10    On 14 November 2023, the applicant applied to the Tribunal for an extension of time to apply for a review of the non-revocation decision. That application was brought pursuant to s 29(7) of the AAT Act, pursuant to which an extension of time may be granted if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. On 19 January 2024, the Tribunal refused the application and provided written reasons for its decision (Tribunal’s decision). A central feature of the Tribunal’s decision was its finding at [7] that the applicant had received the emails on 23 December 2021. On 15 February 2024, the applicant applied to this Court for judicial review of the Tribunal’s decision.

Jurisdiction

11    By filing a Notice of Appeal in this proceeding (as opposed to an originating application), the applicant purports to invoke this Court’s appellate jurisdiction under s 44(1) of the AAT Act. The Notice of Appeal states that the applicant “appeals from the whole of the Tribunal’s decision” under which are set out three “questions of law”, findings of fact and orders sought, and grounds relied on.

12    As the Tribunal’s decision is a privative clause decision, it falls within the ambit of s 43C of the AAT Act. Thus, an appeal under s 44(1) of the AAT Act is not available: see s 43C(a) of the AAT Act and ss 474(2) and 474(3)(i) of the Migration Act.

13    However, this Court has original jurisdiction to review the Tribunal’s decision pursuant to s 476A(1)(b) of the Migration Act. The Minister was content for me to treat the applicant’s Notice of Appeal as being an originating application invoking this Court’s original jurisdiction pursuant to that provision, and that is the basis upon which this matter proceeded.

Grounds 1, 4 and 5

14    By his Notice of Appeal, the applicant contends that:

1.     The Senior Member of the Tribunal erred in concluding that the Applicant had received notification of the decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Second Respondent) of 22 December 2021, on 23 December 2021, or on any date.

…

4.     There is no evidence upon which the Tribunal could reasonably support its finding that the Applicant received notification of the decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs of 22 December 2021.

5.    The Tribunal’s finding that the that the [sic] Applicant received notification of the decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs of 22 December 2021 was legally unreasonable, and amounted to a jurisdictional error.

15    Each of these grounds concern the same core complaint, namely that the Tribunal erred in finding that the applicant received notification of the non-revocation decision. I will therefore address these grounds together.

16    The Tribunal found that the applicant received the non-revocation decision by email on 23 December 2021 in circumstances where:

(1)    the emails in question were sent by the Department to the applicant’s nominated email address on 23 December 2021 and the Department received no rejection, bounce back or ‘failure to send’ notifications in relation to those email communications: [5]–[7];

(2)    there were numerous communications between the applicant and the Department via the applicant’s email account both before and after 23 December 2021: [6], [10];

(3)    the Tribunal considered it to be “implausible” that the applicant would receive every email from the Department except that which attached the non-revocation decision ([10]) and, by reference to screenshots from the applicant’s computer, the Tribunal stated that “it is difficult to accept this email sequence history as reliable and plausible”: [12].

17    In this application, the applicant adduced further screenshot evidence in the form of a court book which he filed on 2 July 2024. However, that material was not before the Tribunal and has no bearing on the resolution of the application. For that reason, I have not had regard to it.

18    In substance, ground 1 alleges that the Tribunal made an error of fact. However, there is no jurisdictional error by the Tribunal making a wrong finding of fact: see BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [63] (Rangiah, Perry and Bromwich JJ); Waterford v Commonwealth (1987) 163 CLR 54 at 77 (Brennan J).

19    By grounds 4 and 5, the applicant contends to the effect that the Tribunal’s finding was legally unreasonable and unsupported by evidence.

20    The threshold for legal unreasonableness is very high. As the Full Court observed in Tsvetnenko v United States of America (2019) 269 FCR 225; [2019] FCAFC 74 at [84] (Besanko, Banks-Smith and Colvin JJ):

[U]nreasonableness is not demonstrated merely by an error in reasoning, even an error that may be characterised as grave. Where the claim of unreasonableness is based on alleged unreasonable reasoning it must be demonstrated that the reasons fail to provide an intelligible justification for the result.

21    Having regard to the Tribunal’s decision and to the evidence which was before it, as referred to in the decision, it was open to the Tribunal to find that the applicant received the non-revocation decision by email on 23 December 2021 and (with respect) the Tribunal’s reasons provide an intelligible justification for that finding.

22    For this reason, the threshold for legal unreasonableness has not been met.

23    It follows that grounds 1, 4 and 5 must fail.

Ground 2

24    By ground 2 of his Notice of Appeal, the applicant contends that the Tribunal “took into account irrelevant considerations”, being the interests of the tax-paying public and that the Minister is taxpayer-funded.

25    One of the factors considered by the Tribunal was the consideration of “any prejudice to the [Minister] or the general public arising from an extension of time”: [15(d)] and [23]–[25]. The Tribunal considered that “the prejudice to be suffered by [the Minister] militates against granting the extension of time sought by the applicant”: [25].

26    A legally irrelevant consideration is a consideration that the statute expressly or impliedly prohibits the decision-maker from taking into account: Greenpeace Australia Pacific Pty Ltd v Chief Executive Officer of the Australian Radiation Protection and Nuclear Safety Agency (2002) 125 FCR 186; [2002] FCA 1144 at [69] (Beaumont J). In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40, Mason J said:

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

(Citations omitted.)

27    The power in s 29(7) of the AAT Act is a broad discretionary power that is enlivened “if the Tribunal is satisfied that it is reasonable in all the circumstances” to grant an extension of time: see Danagher v Child Support Registrar (2014) 228 FCR 213; [2014] FCA 1408 at [56] (Gilmour J).

28    The provision contains no express fetter or restriction on the considerations that the Tribunal must (or must not) take into account when determining whether it is satisfied that an extension of time is “reasonable in all the circumstances”. Nor is there any implied limitation on the factors to which the Tribunal may legitimately have regard.

29    For these reasons, ground 2 must also fail.

Ground 3

30    By ground 3 of his Notice of Appeal, the applicant claims that the Tribunal failed to take into account a relevant consideration, being the merits of the applicant’s substantive application.

31    At [22] of the Tribunal’s decision, beneath the heading “The merits of the substantive application”, the reasons state:

The nature and extent of the material now before the Tribunal does not facilitate a fulsome assessment of the merits referrable to an ensuing substantive application for restoration of the Applicant’s Australian visa status in the event the requested extension of time were granted. This is not the fault of either party given that (1) the Respondent has not had an opportunity (and has not has [sic] otherwise been required) to prepare the statutorily mandated bundle of documents pursuant to s 501G of the Act; and (2) the Applicant has not had an opportunity to put together any statement of facts, issues and contentions addressing the requirements of the prevailing Ministerial Direction. My finding can only be that the merits of any substantive application cannot be [sic] safely be assessed on the present state of the material.

(Footnotes omitted.)

32    Having regard to this extract from the Tribunal’s decision, it is plain that the Tribunal had regard to the merits of the applicant’s substantive application, but determined that the extent of the material before it did not facilitate a fulsome assessment and that the merits of the application could not “safely be assessed”.

33    The applicant could have adduced further evidence about his substantive application if he wished the Tribunal to make further findings on that issue beyond those which it did make. That he failed to do so does not point to jurisdictional error by the Tribunal.

34    In any event, I do not accept that the merits of the applicant’s substantive application constitutes a “relevant consideration” which the Tribunal was “bound” to take into account in making the decision: see Greenpeace at [69] citing Peko-Wallsend at 39. There is nothing in the language or context of s 29(7) of the AAT Act which indicates that the Tribunal is bound to consider those merits. Therefore, even if the Tribunal had not considered the merits of the applicant’s substantive application, any failure to do so would not amount to jurisdictional error.

35    For these reasons, ground 3 must fail.

Disposition

36    For these reasons, the application will be dismissed. Costs should follow the event.

Associate:

Dated:    16 July 2024