Federal Court of Australia

BBD23 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 630

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent's costs fixed in the sum of $5,000.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    The appellant appeals against the dismissal by a judge of the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA) of an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT), in which the AAT concluded that it did not have jurisdiction to review, for the second time, a decision to refuse to grant a protection visa to the appellant.

2    In my view the primary judge was correct to dismiss the appellant's application for judicial review. Before explaining why I have reached that conclusion, it is necessary to provide some further detail regarding the background to this appeal.

Relevant background

3    The appellant is a citizen of Taiwan who first arrived in Australia in May 2018 having been granted a tourist visa. While she was in Australia the appellant applied for the grant of a protection visa.

4    A delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), who considered whether to grant the appellant a protection visa was not satisfied that the appellant was a refugee as defined by s 5H of the Migration Act 1958 (Cth) (Act) and was therefore not satisfied that she was a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed to Taiwan, there was a real risk that she would suffer significant harm as defined in s 36(2A). On that basis, the delegate concluded that the appellant was not a person in respect of who Australia had protection obligations for the purposes of s 36(2)(aa) of the Act.

5    For those reasons, the delegate refused the appellant's application for the grant of a protection visa on 21 December 2018 (delegate's decision).

6    The appellant then applied to the AAT for review of the delegate's decision. Because the delegate's decision was a 'Part-7 reviewable decision' as then defined by s 411(1), it being a relevant decision to refuse to grant a protection visa for the purposes of s 411(1)(c), the appellant's application to the AAT was made under s 412 of the Act, as was then in force. However, the appellant did not appear at the hearing of her application. Accordingly, on 3 November 2022 the AAT exercised the power that was then conferred on it under s 426A(1A)(b) to dismiss the appellant's application without any further consideration of the application, or other information before it, by making a written statement pursuant to s 426B (non-appearance decision).

7    At the time the appellant made her application to the AAT for a review of the delegate's decision s 426A(1B) provided that, if the AAT dismissed a relevant application for review, an application could be made within 14 days after receiving notice of the decision under s 426B for reinstatement of the application. However, while the appellant was given notice of the AAT's decision, she took no steps to have her application reinstated.

8    If an applicant for review did not apply to reinstate an application within the 14-day period provided for in s 426A(1B), the AAT was required to confirm its decision to dismiss the application by written statement under s 430: s 426A(1E). In this case, the AAT confirmed its decision to dismiss the appellant's application on 21 November 2022. By operation of s 426A(1F), the delegate's decision was then taken to be affirmed (confirmation decision).

9    Notwithstanding the confirmation decision, the appellant made a further application to review the delegate's decision on 7 December 2022 (second review application). Upon receipt of the second review application, the AAT invited the appellant to comment on the validity of that application in a letter dated 6 January 2023. As the primary judge noted the AAT's letter relevantly provided:

It appears that your application is not a valid application as an application for review of the same delegate's decision was previously made to the Tribunal. The case number for that first application is [omitted]. The Tribunal made a decision on that application on 21 November 2022. Where the 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.

I am of the view that that [sic] your application is not a valid application. However, this is a matter which must be determined by a Member.

If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 20 January 2023. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

(original emphasis)

10    However, the appellant did not respond to the AAT's letter and she failed to communicate any comment about the validity of the second review application.

11    Having received no comment from the appellant, the AAT then determined on 16 March 2023 that it did not have jurisdiction to review the delegate's decision (jurisdiction decision). The AAT's reasons for decision, which the appellant was notified of on 21 March 2023, were as follows:

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    This is an application for review of a decision of a delegate of the Minister for Home Affairs on 21 December 2018 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The review application was lodged with the Tribunal on 7 December 2022. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3.    An application for review of the same delegate's decision was previously made to the Tribunal. The Tribunal made a decision on that application on 21 November 2022 (File no. [omitted]). Where the 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.    The Tribunal provided the appellant until 20 January 2023 to make submissions on whether a valid application had been made.

5.    No response was received.

6.    As the delegate's decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.

DECISION

7.    The Tribunal does not have jurisdiction in this matter.

12    The appellant then applied to the FCFCOA for judicial review of the jurisdiction decision. As the primary judge noted, the application for judicial review was accompanied by an affidavit signed by the appellant. Annexed to the affidavit was a copy of the AAT's reasons for decision for the jurisdiction decision.

13    In her application for judicial review the appellant relied on two grounds. Those grounds were in the following verbatim terms:

1.    The Department of Home Affiairs was unfairly treated my claims and evidence with wendesbury unreasonableness

2.    The Department of Home Affairs and Administrative Appeals were improperly applied the legal provisions: s65 of Migration Act 1958, part 602 of Schedule 2, cl 602.212 (6), cl 602,216 of the Migration Regulations 1994 properly to assess my case

14    The primary judge dismissed the appellant's application for judicial review. His Honour held that the AAT was correct to conclude that it did not have jurisdiction to review the delegate's decision. His Honour also found that neither ground of review had been established. In that regard, the primary judge said that insofar as the grounds of review complained about the delegate's decision, the FCFCOA had no jurisdiction to review that decision in light of ss 476(2) and 476(4) of the Act. The primary judge also said that the FCFCOA did not have authority to review the merits of the appellant's visa application or to grant her the visa she sought. Finally, the primary judge concluded that none of the provisions of the Act or the Migration Regulations 1994 (Cth) that were referred to in the second ground of review were relevant.

Grounds of appeal

15    Having summarised the relevant background to this matter, I will now set out the grounds of appeal on which the appellant relies:

1.    Minister For Immigration, Citizenship, and Multicultural Affairs and Administrative Appeals Tribunal did not apply the legal provisions of s 426A(1A)(b), 426B(5) of the Migration Act 1958 properly to assess my case, therefore seeking Minister For Immigration, Citizenship and Multicultural Affairs and Administrative Appeals Tribunal to relief the no jurisdiction decision, the Federal Circuit and Family Court of Australia to relief the dismissed order about my case and has jurisdiction on my case on 04/10/2023

2.    Minister For lmmigration, Citizenship, Migration Service and Multicultural Affairs and Administrative Appeals Tribunal was unfairly treated my claims and evidence with wendesbury unreasonableness.

(original emphasis)

16    It may be seen that ground 1 does not clearly identify any alleged error in the primary judge's reasons. The lack of clarity concerning the complaint made by ground 1 was compounded because the appellant did not file any written submissions in support of her grounds of appeal.

17    The appellant did appear at the hearing of her appeal. Although she did not have the benefit of legal representation, the appellant was assisted by an interpreter. The appellant was also in possession of a copy of the appeal book as well as a copy of the first respondent's written outline of submissions.

18    At the hearing of the appeal, it was explained to the appellant that the Court had to decide whether the primary judge made errors when he dismissed her application for judicial review in the FCFCOA. However, the appellant's oral submissions did not identify any errors and did not address the grounds of appeal in any substantive way. Instead, the appellant essentially complained that her lawyer in Sydney had failed to notify her of the AAT's hearing to review the delegate's decision, and that this was why she failed to attend at that hearing. The appellant said that, had she been told about the need to appear at that hearing, she would have appeared.

19    In the circumstances, I have taken the appellant to assert in ground 1 that the primary judge erred in finding that the AAT did not have jurisdiction to determine the second review application. To the extent that ground 1 might otherwise be understood to extend to making complaints about the non-appearance decision or the confirmation decision, in light of the references in the ground to the now repealed ss 426A(1A)(b) and 426B(5) of the Act, those complaints are without merit. As the primary judge correctly observed at [51] of the primary judgment, neither of those decisions were the subject of her application for judicial review.

20    Ground 2 is also problematic because it does not identify any error in the primary judge's reasons. Instead, it alleges that both the Minister and the AAT 'unfairly treated [the appellant's] claims' (original emphasis). The reference to 'wendesbury unreasonableness' (original emphasis) may be understood as a complaint that the decisions of the Minister and the AAT were also affected by legal unreasonableness. Nevertheless, as the terms of ground 2 closely reflect the first ground of review on which the appellant relied before the primary judge, I will approach it on the basis that the appellant contends that the primary judge erred in dismissing her first ground of review.

21    I will now deal with each ground of appeal in turn.

Ground 1

22    In my view, the primary judge correctly concluded that the AAT did not have jurisdiction to conduct a second review of the delegate's decision. As will be seen, this conclusion is based on the proper construction of various provisions found in the now repealed Pt 7 of the Act.

23    The question of whether the AAT had jurisdiction under the Act as it stood at the relevant time to conduct a further review of a decision of a delegate of the responsible Minister to refuse to grant a protection visa, in circumstances in which the AAT's original review of that decision was not affected by jurisdictional error, has been considered by this Court on several occasions: see for example, SZASP v Minister for Immigration and Citizenship [2007] FCA 771; SZBRB v Minister for Immigration and Citizenship [2007] FCA 1452; SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175; (2008) 171 FCR 299; SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940; and BWI18 v Minister for Home Affairs [2020] FCA 290.

24    Consistently with the explanation given by Moore J in SZBWJ, when the relevant reviewing tribunal was the Refugee Review Tribunal (RRT), upon a valid application being made to the AAT for a 'Part-7 reviewable decision' under s 412 of the Act, the AAT was required to review the decision. In this case, it is not in issue that the delegate's decision was a 'Part-7 reviewable decision' for the purposes of s 411(1)(c). It is also not in issue that the second review application was a 'valid application' for the purposes of s 412. In those circumstances, and without more, the AAT was required by s 414(1) to review the delegate's decision.

25    At the relevant time, s 414(1) was in the following terms:

Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7‑reviewable decision, the Tribunal must review the decision.

26    As Moore J noted in SZBWJ at [8], the High Court said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [16] that '[a] valid application for review having been made, s 414(1) obliged the RRT to review the decision of the delegate of the Minister'.

27    However, Moore J also said that the relevant analysis does not end with s 414 and that the question of whether the RRT had the power to review a delegate's decision to refuse an application for a protection visa for a second time is one of statutory construction. In that context, Moore J observed at [9] that there is no general principle of administrative law that an administrative decision-maker possesses no power to remake or reconsider a decision once made, referring to what was said by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 603:

There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. In Ridge v Baldwin, Lord Reid said:

'I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid.'

That general proposition must yield to the legislation under which a decision-maker is acting. And much may depend upon the nature of the power that is being exercised and of the error that has been made.

(citations omitted)

28    In SZBWJ, Moore J also noted that s 33(1) of the Acts Interpretation Act 1901 (Cth) provides that where legislation confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised, and the duty shall be performed from time to time as occasion requires. However, his Honour was of the view that the contrary intention did appear from the Act with the result that the RRT was not empowered to conduct a second review of a delegate's decision to refuse to grant a protection visa when the RRT's original decision was not affected by jurisdictional error. Specifically, Moore J considered that this was apparent having regard to the way in which s 414(1) interacted with other relevant provisions of the Act, in particular ss 48A(1), 48B(1), 50 and 416.

29    In that regard s 48A(1) provided that, subject to s 48B, a non-citizen who, while in the migration zone, has made an application for a protection visa and the grant of the visa has been refused may not make a further application for a protection visa while they are in the migration zone. There is no question that this provision applied to the appellant at all relevant times. In those circumstances, s 48B(1) conferred on the responsible Minister a discretion, if he or she thought that it was in the public interest, to determine that s 48A did not apply to a particular non-citizen to prevent an application for a protection visa being made.

30    At the relevant time, s 50 provided that where a non-citizen made a further application for a protection visa, the Minister was not required to reconsider any information considered in the earlier application, and was entitled to have regard to, and take as correct, any decision he or she made about or because of that information. Section 416 also operated in a similar way to s 50 in relation to later applications for review by the RRT.

31    As to this statutory context, Moore J said at [14] to [16]:

The combined effect of ss 48A(1), 48B(1), 50, 414 and 416 in the circumstances of these proceedings is as follows. Under s 414, the Tribunal was obliged to consider the applicants' application for review. The Tribunal did so, and made a decision that was free of jurisdictional error. Given that the Minister had not given approval under s 48B, the effect of s 48A was that the applicants were not permitted to make a further application for a protection visa while they were in the migration zone.

Assuming for that moment that the Minister had given approval under s 48B for the applicants to make a further application for a protection visa, in considering that application, the Minister (or his or her delegate) was, by virtue of s 50, only obliged to consider new information in relation to that application. If the Minister made a decision, and the applicants sought review of that decision, the Tribunal, in reviewing the decision, was similarly obliged only to consider information that had not been previously put before it: s 416.

In my view, a proper construction of the Act tells against a conclusion that the Tribunal is empowered to again review the delegate's decision in circumstances where the Tribunal's original decision was not attended with jurisdictional error. Treating the Tribunal as authorised to undertake a second review of the delegate's decision would be contrary to the statutory aim of providing a mechanism of review that is 'fair, just, economical, informal and quick': see s 420(1) of the Act. It [is] also apparent from the Act that it places a high value on certainty, evidenced by the prescription of 'strict time limits, detailed provisions governing the conduct of review proceedings and precise requirements as to the way in which the Tribunal is to record its decision and the reasons for it and is to notify and publish its decisions': Minister for Immigration & Multicultural Affairs v Bhardwaj (2000) FCR 251 at [58].

(emphasis added)

32    His Honour then observed at [21] that the decision of the High Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 (Thiyagarajah) supported his conclusion that the RRT did not have jurisdiction to consider a second application to review a delegate's decision to refuse to grant a protection visa. In my view, that observation was plainly correct. In that regard, in Thiyagarajah Gleeson CJ, McHugh, Gummow and Hayne JJ held at 355:

[T]he Act posits the determination of a particular application at a particular time. The Act contemplates changed circumstances which might found a fresh application, but imposes the limitations found in ss 48A and 48B.

It would be inconsistent with that scheme and contrary to the ordinary reading of Div 2 of Pt 7 of the Act [concerning Pt-7 reviewable decisions] to treat the decision of the [Refugee Review Tribunal] as provisional in nature. In the situation where the [Refugee Review Tribunal] had, without reviewable error, disposed of an application for review of the decision of the delegate . . . the Act did not confer upon the [Refugee Review Tribunal] any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances.

(emphasis added)

33    For the reasons expressed by Moore J in SZBWJ, and having particular regard to what was said by the High Court in Thiyagarajah in the emphasised part of the quote I have extracted from that decision, I am of the view that the primary judge was correct to conclude that the AAT did not have jurisdiction to consider the second review application.

34    Ground 1 must be dismissed.

35    This conclusion means that the appeal must necessarily be dismissed. If the AAT lacked jurisdiction to conduct a second review of the delegate's decision, it follows that the issues raised by ground 2, insofar as they are concerned with the fairness of the AAT's consideration of the question of its jurisdiction or the legal reasonableness of its decision, do not fall to be determined. Nevertheless, I will deal briefly with ground 2.

Ground 2

36    One of the appellant's grounds of review that were before the primary judge raised issues concerning the fairness and reasonableness of the delegate's decision. However, and as the primary judge correctly observed at [45] of his reasons for decision, the FCFCOA did not have jurisdiction to review that decision. Pursuant to s 476(2)(a) of the Act, the FCFCOA had no jurisdiction in relation to a 'primary decision', as defined in s 476(4). Relevantly, a 'primary decision' included a decision, such as the delegate's decision, to refuse to grant a protection visa: ss 476(4)(a) and 411(1)(c). Accordingly, to the extent that ground 2 is concerned with the primary judge's consideration of the delegate's decision, it is without merit.

37    By this ground the appellant also appears to contend that her 'claims' were unfairly dealt with by the AAT, and that the jurisdiction decision was legally unreasonable. However, none of those issues were raised before the primary judge. In any event, a complaint that the AAT unfairly treated her 'claims' in the context of the jurisdiction decision is entirely without merit.

38    The material that was before the primary judge demonstrates that, after the appellant lodged the second review application, the AAT wrote to the appellant on 6 January 2023 and informed her that her application appeared to be invalid because a previous application for review of the delegate's decision had already been made. An invitation was then extended to the appellant to make 'any comments on whether a valid application [had] been made', and she was informed that those comments would be referred to a member of the AAT for consideration.

39    As the appellant did not provide any comments to the AAT, it is nonsensical to suggest that the AAT unfairly treated her 'claims'. The appellant had not made any claims at all.

40    The appellant has not explained why she contends that the jurisdiction decision was unreasonable. In any event, having reviewed the brief reasons that were given by the AAT for that decision, I am unable to detect any basis on which it could be said that the jurisdiction decision was legally unreasonable so as to amount to jurisdictional error.

41    Ground 2 must be dismissed.

Conclusion

42    Both grounds of appeal are without merit. It follows that the appeal must be dismissed.

43    In those circumstances it is appropriate to make an order that the appellant pay the Minister's costs. It is also appropriate that the amount of those costs be fixed in the sum of $5,000. In that regard, I note that this is less than the amount that the Minister may have claimed under r 40.43(3) of the Federal Court Rules 2011 (Cth).

Associate:

Dated:    21 May 2026