CMPT and Minister for Immigration and Citizenship [2011] AATA 9 (13 January 2011)

Last Updated: 17 January 2011

CATCHWORDS - MIGRATION – application for an extension of time – decision of refusal to grant Protection (Class XA) visa – Tribunal has no jurisdiction to review decision – application refused.

Administrative Appeals Tribunal Act 1975 s 25
Migration Act 1958 ss 5, 13, 14, 31, 36, 65, 91T, 91U, 198, 200, 411, 443, 500, 501, 502
Migration Regulations 1994 r 866.221
1967 Protocol Relating to the Status of Refugees Arts 1A, 1B, 1C, 1D, 1E, 1F, 32, 33
Taxation Administration Act 1953

Brown v Federal Commissioner of Taxation [1999] FCA 563; (1999) 99 ATC 4516; 42 ATR 118
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
Re DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377; (2010) 115 ALD 566

DECISION AND REASONS FOR DECISION [2011] AATA 9

ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/5225
GENERAL ADMINISTRATIVE DIVISION )

Re: CMPT

Applicant

And: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 13 January 2011

Decision: The Tribunal decides to:

1. refuse the applicant’s application for an extension of time within which to review the decision made by a delegate of the Minister for Immigration and Citizenship on 23 February 2010; and
2. dismiss the applicant’s application dated 30 November 2010 for review of the respondent’s decision on the basis that the Tribunal does not have jurisdiction to review that decision as it is not a decision for which review is provided by s 500(1) of the Migration Act 1958.
   

S A FORGIE
Deputy President

REASONS FOR DECISION

On 30 November 2010, CMPT lodged an application to extend the time within which to review a decision of a delegate of the Minister for Immigration and Citizenship (Minister)[1] made on 23 February 2010. The delegate had refused to grant CMPT a Protection (Class XA) visa on the basis that he was not satisfied that CMPT had met s 36 of the Migration Act 1958 (Migration Act) or prescribed criterion 866.221 of the prescribed criteria for that visa set out in the Migration Regulations 1994 (Migration Regulations). The relevant part of s 36 is s 36(2)(a) and the relevant part of it and of criterion 866.221 is that the Minister had to be satisfied that CMPT was a person “... to whom Australia has protection obligations under the Refugees Convention ...”.[2]

2. At the hearing of the application for an extension of time application, I allowed CMPT’s migration agent until 5 January 2011 to make any further written submissions he wished to make. I understood from the hearing that he would return to work by 4 January 2011. He did not lodge any submissions and a message left with his office on 7 January 2011 has not led to his doing so by the time I gave these reasons.

3. It may be that the decision was reviewable by the Refugee Review Tribunal (RRT) had an application been made to it but I have decided that this Tribunal does not have power to review it. As this Tribunal does not have power, any application made to it by CMPT to review the decision is bound to fail. Therefore, extending the time within which he might lodge such an application would be futile and I refuse his application to do so. My reasons are set out more fully below.

THE POWER TO EXTEND TIME: GENERAL PRINCIPLES

4. In Re DHLD and Executive Director, Social Security Appeals Tribunal,[3] I set out the general principles that guide the exercise of the discretion to extend the time within which an application to review a decision may be made to the Tribunal. Apart from one matter, I will not repeat them but do adopt them in their entirety. The one matter to which I want to pay particular regard is from the judgment of Hill J in Brown v Federal Commissioner of Taxation.[4] His Honour commented upon the relevance of particular principles set out in Hunter Valley Developments Pty Ltd v Cohen[5] (Hunter Valley). In that case, a taxpayer, Mr Brown, had asked for an extension of time within which to lodge an objection from an assessment under the Taxation Administration Act 1953. The Commissioner of Taxation (Commissioner) had refused his request and the Tribunal affirmed the Commissioner’s decision. When Mr Brown appealed to the Federal Court against the Tribunal’s decision, Hill J considered the merits of his case. In doing so, he said:

“... For present purposes I am prepared to accept the view of von Doussa J in Windshuttle [v Deputy Federal Commissioner of Taxation [1993] FCA 553; (1993) 93 ATC 4992] that an applicant should show that he or she has an arguable case. No doubt if the objection on the face of it is one which is frivolous or bound to fail as a matter of law it would be a futility to permit an extension of time to enable it to be considered. ...”[6]

5. Where the Tribunal does not have power to review the decision in relation to which an application is made, the application is bound to fail as a matter of law. As Hill J said, it would be futile to extend the time within which an application could be made in those circumstances. It would be futile regardless of the view that might be adopted in the particular case regarding the other principles relating to extension of time applications.

DOES THE TRIBUNAL HAVE POWER TO REVIEW THE DECISION?

General principles

6. Unlike a court of general jurisdiction which may consider all matters that come before it for trial, the Tribunal’s jurisdiction is limited. As it has been created by statute, the extent and limits of its powers must be found in statute whether expressly or implicitly. The obvious statute is the Administrative Appeals Tribunal Act 1975 (AAT Act). That Act does not itself confer power on the Tribunal to review decisions. Instead, it makes provision for other statutes to confer power to do so on the Tribunal. What it does do is establish the framework within which the Tribunal processes applications for review of decisions and the framework within which it conducts that review. In particular, it gives the Tribunal all of the tools that it needs, or may need, in order to review decisions when it is given jurisdiction or power to review decisions and to deal with applications seeking review of those decisions. It also sets out the circumstances in which the Tribunal may use those tools. When it confers power on the Tribunal to review a decision, it may decide to alter the tools it has given the Tribunal or the circumstances for their use but, in most cases, it does not.

7. The AAT Act makes provision for other statutes to confer power on the Tribunal to review decisions by providing in s 25(1) 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;

(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.”

The enactment referred to in s 25(1) must specify the person or persons whose decisions may be reviewed and must specify whether all of the person’s decisions may be reviewed and, if not, the classes of decisions that may be reviewed. The enactment may specify conditions on which a person may apply for review of those decisions. That is the effect of s 25(3). Section 25(4) provides the necessary corollary to ss 25(1) and (3) by providing that the “... Tribunal has power to review any decision in respect of which application is made to it under any enactment.”

8. In order to identify any enactment of the sort referred to in ss 25(1), (3) and (4) of the AAT Act, it is necessary to consider:

(1) the proper characterisation of the decision that has been made in substance as well as in form;

(2) the provision or provisions of any enactment under which the decision has been made;

(3) the provision or provisions of any enactment providing for review of a decision of that sort; and

(4) if provision is made for review of the decision, the circumstances in which it may be sought and the person or body which may carry out that review.

The decision of which review is sought: step (1)

9. The delegate worded his decision in this way:

“I am not satisfied that ... [CMPT] is owed protection obligations for the purposes of section 36 of the Migration Act and criteria 866.221 of the Migration Regulations. I find that ... [CMPT] has not met criteria 866.221 of the Migration Regulations and therefore has not met the prescribed criteria for the grant of a Protection (Class XA) visa. Accordingly, I refuse to grant ... [CMPT] a Protection (Class XA) visa.”

10. In his reasons for decision, the delegate considered CMPT’s application against the criteria that he had to meet in order to be a person to whom Australia owed protection obligations under the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (Refugees Convention). He set out each and then followed each with CMPT’s claim, the evidence and his finding. The headings he used to identify the criteria were: “What is the applicant’s country of reference?”; “Does the applicant have the right to enter and reside in a safe third country?”; “Does a cessation clause apply (Article 1C)?”; “Does the applicant come within one of the exclusion clauses in Article 1D, 1E or 1F?”; “Does that applicant come within Article 33(2) of the Refugees Convention, in respect of its express exception to the prohibition on refoulement?”; “Is the harm feared for a Convention reason?”; and “Is the fear of Convention-based persecution well-founded?”. Apart from the first question, the delegate made a negative finding in relation to each question. I will set out only three of the questions and findings for they become relevant later in these reasons:

“Does a cessation clause apply (Article 1C)?

In the absence of evidence to the contrary, I find that the cessation clauses in Article 1C do not apply to the applicant.

Does the applicant come within one of the exclusion clauses in Article 1D, 1E or 1F

In the absence of evidence to the contrary, I find that the applicant does not come within Articles 1D, 1E and 1F of the Refugees Convention. I find that s 91T[[7]] of the Migration Act as it relates to Article 1F does not apply to the applicant.

Does the applicant come within Article 33(2) of the Refugees Convention, in respect of its express exception to the prohibition on refoulement?

In the absence of evidence to the contrary, I find that the applicant does not come within Article 33(2) of the Refugees Convention further to its application relevant to
s 91U of the Migration Act.”[8]

11. It is clear from the form and substance of the delegate’s reasons for decision that his decision was to refuse CMPT’s application for a protection visa. His findings regarding the criteria he considered were a necessary step in reaching his decision. They can be characterised as decisions on those criteria and as decisions that are subordinate to, but that must be made before, the ultimate decision can be made. The ultimate decision remains the delegate’s decision to refuse CMPT’s application for a protection visa. This becomes clear when regard is had to the provisions under which the delegate made the decision.

The provisions under which the decision was made: step (2)

12. In his reasons for decision and in his decision itself, the delegate identified the criteria that CMPT had not met. He did not identify the provision under which he made his decision. His decision was to refuse to grant CMPT a protection visa. The reasons for making that decision were that he had found that CMPT had not met the criteria he had to meet in order to be granted such a visa. Section 65(1) of the Migration Act provides:

“After considering a valid application for a visa, the Minister:

(a) if satisfied that:

(i) the health criteria for it (if any) have been satisfied: and

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b) if not so satisfied is to refuse to grant the visa.”

13. Clearly, s 65(1)(a)(ii) is the placitum on which the delegate relied. The relevant criteria in this case are found in both the Migration Act and the Migration Regulations. Taking the Migration Act first, s 36(1) creates a class of visa to be known as protection visas. Section 36(2)(a) provides that:

“A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) ...”

14. The class of visa provided for in s 36 is recognised as a class of visa under s 31(2) of the Migration Act. It is one of the classes of visa named in s 31(3). That section provides that the Migration Regulations may prescribe criteria for visas of a specified class including those provided for by s 36.

15. A Subclass 866 visa is a protection visa in respect of which the Migration Regulations prescribe both primary and secondary criteria. Among the primary criteria that must be satisfied at the time the decision is made is that:

“The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.”[9]

16. Article 1A of the Refugees Convention, sets out the circumstances in which a person will be regarded as a refugee for the purposes of the Refugees Convention. Of relevance in this case is its provision in Art 1A that:

“For the purposes of the present Convention, the term “refugee” shall apply to any person who:

(1) ...[[10]]

(2) ... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling or unable to avail himself of the protection of that country; ...”

17. It follows that, if a person comes within Art 1A(2), that person is considered a refugee for the purposes of the Convention. That fact does not of itself necessarily lead to the conclusion that the person is “a person to whom Australia has protection obligations under the Refugees Convention”. Regard must be had to Art 1C of the Refugees Convention. It provides that “This Convention shall cease to apply to any person falling under the terms of section A ...:” of Art 1 in any one of the six circumstances set out in Art 1C. Those circumstances include a person’s re-availing him or herself of the protection of the country of his or her nationality[11] or voluntarily re-establishing him or herself in the country which he or she had left or outside of which he or she had remained owing to fear of persecution.[12] Articles 1D and 1E provide that the Refugees Convention “shall not apply” to persons coming within the circumstances they prescribe.

18. Article 1F also adopts the style of exclusion. It provides:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”

19. The Refugees Convention sets out the obligations of Contracting States to a refugee. One of those obligations is found in Art 32(1) which provides that:

“The Contracting States shall not expel a refugee lawfully in their territory save on the grounds of national security or public order.”
The remaining provisions of Art 32 go on to regulate matters such as the circumstances in which such a decision may be made and the procedures that must be followed.

20. Article 33 qualifies Art 32 by providing that:

“1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

21. The Migration Act and the Migration Regulations do not define when “Australia has protection obligations under the Refugees Convention”. It is clear from the Refugees Convention that a Contracting State, of which Australia is one – does not have protection obligations to a person unless that person is a refugee as defined in Art 1A, a person to whom the Refugees Convention continues to apply when regard is had to Art 1C and not a person to whom the Refugees Convention does not apply when regard is had to Arts 1D, E and F. That means that, in order to decide that a person is a person to whom “Australia has protection obligations under the Refugees Convention”, the delegate had to consider each of those matters and make findings, and reach a decision, about each of them on the evidence he had. That he did.

The provisions providing for review of a decision of this character: steps (3) and (4)

22. Part 7 of the Migration Act provides for the review of decisions regarding protection visas. Division 2 of that Part provides for the review of certain decisions by the RRT. They are known as RRT-reviewable decisions and include “a decision to refuse to grant a protection visa”[13]. The delegate’s decision is such a decision. It appears from the decision – and no material has been given to me to dispel that impression – that CMPT is physically present in Australia and so in the migration zone.[14] Therefore, the decision is an RRT-reviewable decision and is not excluded from that description by s 411(2). CMPT could have applied to the RRT for review of the decision but, as I understand matters, has not done so.

23. Does Part 7 provide for any other review of the delegate’s decision and, in particular, by this Tribunal? With one exception, Part 7 does not. Division 9 of that Part establishes the RRT and Division 10 deals with its officers and Registry. Divisions 3, 4 and 5 are relevant to the way in which the RRT conducts its review and reaches its decision. Divisions 6 to 7A concern certain allied and machinery matters. No provision is made in Divisions 1 to 7A for this Tribunal to review RRT-reviewable decisions.

24. Division 8 of Part 7 is the exception to which I referred. It provides for the Principal Member of the RRT to refer an RRT-reviewable decision to this Tribunal in the circumstances set out in s 443(1). Such a referral can only be made after the RRT has received an application for review of that decision and before it makes a decision on it. As I understand matters, CMPT has not made an application of that sort to the RRT and Division 8 does not make any provision for him to apply directly to this Tribunal.

25. The only provisions of the Migration Act dealing with review of decisions by this Tribunal are to be found in s 500(1). It provides:

“Applications may be made to the Administrative Appeals Tribunal for review of:

(a) decisions of the Minister under section 200 because of circumstances specified in section 201; or

(b) decisions of a delegate of the Minister under section 501; or

(c) a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);

other than decisions to which a certificate under section 502 applies.”

26. A certificate under s 502 is issued by the Minister in circumstances in which:

“(a) the Minister, acting personally, intends to make a decision:

(i) under section 200 because of circumstances specified in section 201; or

(ii) to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);

in relation to a person; and

(b) the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;

...”

In those circumstances, the Minister may, as part of the decision, issue a certificate declaring the person to be an excluded person. They are not the circumstances in which CMPT finds himself. In that regard, it is enough to note that the Minister has not made the decision personally.

27. Section 500(1) clearly provides for three classes of decision to be reviewable by the Tribunal. I will deal with each in turn.

28. Beginning with the class specified in s 500(1)(a), the decision made by the delegate in this case was clearly not made under s 200 of the Migration Act. A decision under that section is a decision to deport a non-citizen to whom Division 9 of Part 2 applies. The delegate did not make a decision to deport CMPT. A decision refusing a visa is not a decision to deport a person, who is not an Australian citizen. Unless that person holds another visa immediately after the refusal, that person will be an unlawful non-citizen[15]. Section 198(2)(c)(ii) provides that “An officer must remove as soon as reasonably practicable an unlawful non-citizen: ... (c) who ... (ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.” A protection visa is a substantive visa as it is a visa other than a bridging visa, criminal justice visa or an enforcement visa.[16]

29. The second class is specified in s 500(1)(b) but the delegate’s decision does not come within that class either. A decision under s 501 is a decision to refuse an application for a visa or to cancel a visa that has previously been granted to a person but only if the decision to refuse or cancel was made because the person did not satisfy the Minister that he or she passes the character test. The character test is set out in s 501(6) as illuminated by ss 501(7) to (12). It is quite clear from the delegate’s decision and reasons for decision that he did not consider the character test or reach any conclusion about it. He certainly did not make his decision on the basis that CMPT did not satisfy him that he passed it.

30. That brings me to the third and final class of decision that the Tribunal may review when the decision has been made under the Migration Act. It is a class that comprises decisions to refuse to grant or to cancel a protection visa but it is not all decisions of that sort. Section 500(1)(c) provides that an application may only be made to the Tribunal if the decision to refuse to grant a protection visa was made by the delegate relying on one or more of three specified Articles of the Refugees Convention. They are Arts 1F, 32 and 33(2). I have referred to them above.[17]

31. Taking Art 1F first, the delegate of the Minister did not make his decision relying on that Article. If he had done so, he would have made a decision to the effect that there were serious reasons for considering that CMPT had committed crimes of the sort referred to in (a) or (b) of that Article or been guilty of acts contrary to the purposes and principles of the United Nations. The delegate did not make a decision to that effect. Instead, he decided that CMPT did not come within that Article and that the Migration Act, as it relates to that Article, did not apply to CMPT. The consequence of his reaching that decision was that CMPT was not excluded from the application of the Refugees Convention by virtue of Art 1F. Therefore, the decision to refuse CMPT a protection visa could not be said to have been made relying on that provision. Therefore, the decision is not a decision of the sort coming within s 500(1)(c) of the Migration Act and so the Tribunal does not have power or jurisdiction to review it.

32. The delegate’s decision was not made under Art 32. An examination of the delegate’s reasons shows that he did not make a decision to expel CMPT on the grounds of national security or public order. He made no reference to anything to do with national security or public order either expressly or implicitly. As the delegate did not make a decision, it cannot be said that the decision to refuse CMPT’s protection visa was made relying on Art 32. As there is no such decision, there is no decision to come within the group of decisions specified in s 500(1)(c). Consequently, s 500(1)(c) does not permit CMPT to make an application to the Tribunal.

33. Article 33(2) limits the circumstances in which a Contracting State can carry out a decision to expel or return (refoul) a refugee. I have set it out at [20] above. Review of the delegate’s decision would be available if it had been made under Art 33(2). An examination of his reasons, however, shows that he did not make a decision to expel or return CMPT on the basis that there were reasonable grounds for regarding him as a danger to Australia’s security or that, having been convicted by final judgment of a particularly serious crime, he constituted a danger to Australia’s security. What he decided was directly contrary to that. He decided that CMPT did not come within that Art 33(2). By deciding that CMPT did not come within Art 33(2), the delegate did not rely on that Article to refuse his application for a protection visa. Article 33(2) played no part in his decision to refuse the protection visa. Therefore, it cannot be relied upon to bring the delegate’s decision within the group of decisions described in s 500(1)(c) and in relation to which an application may be made to this Tribunal for review.

DECISION

34. It follows that the Tribunal does not have power or jurisdiction to review the delegate’s decision even if CMPT had lodged an application to do so within time. In view of that, any order permitting such an application to be made would be futile. Therefore, I refuse CMPT’s application for an extension of the time within which to lodge an application to review the decision made on 23 February 2010 by a delegate of the Minister.

I certify that the thirty four preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President S A Forgie,

Signed: .......................................................................

Leah Berardi, Associate

Date of Hearing 10 December 2010

Date of Decision 13 January 2011

Solicitor for the Applicant Mr Vu Hoang Nguyen

Asia Pacific Lawyers

Solicitor for the Respondent Ms Melissa Gangemi

Australian Government Solicitor

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[1] “The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act”: Migration Act, s 496(1). On the face of the decision, the decision-maker has described himself as a delegate of the Minister for the purposes of s 65 of the Migration Act. Section 65 confers power on the Minister to grant, or refuse to grant, a valid application for a visa.
[2] Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees
[3] [2010] AATA 377; (2010) 115 ALD 566 at [37]- [45]; 579-583
[4] 1999] FCA 563; (1999) 99 ATC 4516; 42 ATR 118 at [33]- [37]; 4523-4524; 127
[5] (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
[6] (1999) 99 ATC 4516; (1999) 42 ATR 118; [1999] FCA 563 at at 4526-7; 131; [56] See also the judgement of the Full Court of the Federal Court on appeal: Federal Commissioner of Taxation v Brown (1999) 99 ATC 4852; 42 ATR 672; [1999] FCA 1198 at 4860; 680-681; [28]
[7] Section 91T of the Migration Act qualifies the meaning of a “non-political crime” as used in Art 1F of the Refugees Convention.
[8] Section 91U of the Migration Act expands upon the meaning of “particularly serious crime”.
[9] Migration Regulations, criterion 866.221
[10] Article 1A(1) refers to a person who has been considered a refugee under previous Arrangements or Conventions. Article 1B expands upon its meaning.
[11] Art 1C(1)
[12] Art 1C(4)
[13] Migration Act, s 411(1)(c)
[14] The term “migration zone” is defined in s 5(1) of the Migration Act and includes the Australian States and Territories among other areas.
[15] Migration Act ss 13 and 14
[16] Migration Act s 5(1)
[17] See [18]-[20] above