FEDERAL COURT OF AUSTRALIA In-Ophat v Minister for Immigration & Multicultural Affairs [2001] FCA 1137 MIGRATION – notice of objection to competency – where application unclear as to which decision it relates – appeal from decision of Administrative Appeals Tribunal to dismiss proceedings under s 42A(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) s 42A(2)(a), s 44 Migration Act 1958 (Cth) s 411(1)(c), s 412(1)(b), s 475(2)(d), s 485(1) Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 referred to Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 179 ALR 238 referred to SUKANYA IN-OPHAT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1060 of 2001 STONE J 16 AUGUST 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1060 OF 2001 BETWEEN: SUKANYA IN-OPHAT APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: STONE J DATE OF ORDER: 16 AUGUST 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the application be dismissed as incompetent; 2. the applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1060 OF 2001 BETWEEN: SUKANYA IN-OPHAT APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: STONE J DATE: 16 AUGUST 2001 PLACE: SYDNEY REASONS FOR JUDGMENT background 1 The applicant is a citizen of Thailand who arrived in Australia on 18 November 2000. On 29 December 2000, she lodged an application for a protection visa, which was refused by a delegate ("Delegate") of the respondent ("Minister") on 9 March 2001. On the same day, the applicant was informed by letter that her application had been refused and that she had the right to apply to the Refugee Review Tribunal ("RRT") for review within 28 days. Instead, on about 10 April 2001, the applicant applied to the Administrative Appeals Tribunal ("AAT") for review of the Delegate's decision. That application advised that B.T. & N.G. Consultants ("Consultants") were representing the applicant. How the application came to be made to the AAT is not explained. It is of particular concern that this should occur when the applicant was represented by the Consultants who purport to operate in conjunction with registered migration agents. 2 On 11 April 2001, a Deputy Registrar of the AAT wrote a letter to the Consultants stating that, in her view, the AAT did not have jurisdiction to review the Delegate's decision and suggesting that the Consultants contact the RRT. On 20 April 2001, the Consultants wrote a letter to the AAT asserting that, in their client's view, the AAT does have jurisdiction to review the decision made by the Delegate. The Consultants' letter gives no reasons for its assertion. Unsurprisingly, it appears that neither the Consultants nor the applicant attended the hearing before the AAT on 24 May and 15 June 2001 and, on this basis, on 15 June 2001, the AAT dismissed the application under s 42A(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth). The AAT's order gave the applicant leave to move to set aside the dismissal of her application within 28 days of the date of the order. application for order of review 3 On 11 July 2001, the applicant filed an application for an order of review in this Court. The applicant seeks an order that the Department of Immigration "change its decision and reconsider the decision applying specified legal principal [sic]". The application states that the grounds of the application are: "The decision made by the delegate officer of Immigration Department and the Tribunal is unreasonable and unjust which is contrary to law." 4 The respondent has filed a notice of objection to competency objecting to the jurisdiction of this Court to try the application. The respondent contends that from the terms of the application, "it is apparent" that the applicant is seeking review of the AAT's decision under the Migration Act 1958 (Cth) ("Act"). With respect, it is not quite so apparent to me. To my mind, it is not even clear whether the applicant is seeking a review of the AAT's decision or that of the Delegate. It is not necessary, however, to clarify this issue since in neither case is this Court able to make the orders that the applicant seeks. Appeal from decision of Delegate 5 A decision of the Delegate is an "RRT-reviewable decision"; s 411(1)(c). As such it is not a judicially reviewable decision and this Court has no jurisdiction to review it; s 475(2)(d), s 485(1). Appeal from decision of AAT 6 The applicant, as a party to a proceeding before the AAT, may appeal to this Court on a question of law from any decision of the AAT; s 44 Administrative Appeals Tribunal Act 1975 (Cth). The decision of the AAT may or may not involve a question of law. If it does involve a question of law there is no error apparent. The decision to dismiss the application because of the non-appearance of the applicant is an exercise of the power in s 42A(2)(a). There is no jurisdictional basis for any appeal to this Court. As the AAT's order indicates, the applicant could have moved the AAT to set aside the decision within 28 days of the date of the order. That time has now expired. In any event, to do so would have been futile. I am confident that, as the AAT's letter of 11 April 2001 to the applicant (see [2] above) indicates, the AAT has no jurisdiction to review the decision of the Delegate. The appeal to the AAT had no future. 7 The proper avenue of appeal from the decision of the Delegate was to the RRT. Any such appeal had to be made not later than 28 days after the notification of the Delegate's decision; s 412(1)(b). Unfortunately this period has now expired and thus the applicant can no longer apply to the Refugee Review Tribunal; Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407. It would seem that, if the applicant wishes to pursue the matter, the only avenue open to her would be to make application to the High Court of Australia seeking relief by way of prerogative writs (often called constitutional writs) under s 75(v) of the Constitution in relation to the Delegate's decision; see, for example, Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 179 ALR 238. 8 For the above reasons, the objection to competency is upheld. The application must be dismissed as incompetent. I will also order that the applicant pay the costs of the respondent. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 27 August 2001 Solicitor for the Applicant: no appearance Solicitor for the Respondent: Clayton Utz Date of Hearing: 16 August 2001 Date of Judgment: 16 August 2001